Employment and Migration Blog

New Modern Award Clause in Relation to Requests for Flexible Arrangements

Posted by Lisa Qiu on 22 Feb 2019

Assisted by Kristina Tato.

As part of its 4-yearly review of modern awards, the Fair Work Commission recently made a significant decision pertaining to requests for flexible work arrangements.  Flexible arrangements involving changes to work locations, work hours and work patterns are common, and are encouraged by the National Employment Standards (NES) contained in the Fair Work Act 2009, which provides for a right to request a flexible working arrangement.

Since 1 December 2018, this right has been supported by a new modern award clause providing more structure around the process for requesting flexible arrangements.  The new clause imposes an obligation on employers to discuss the request with the employee and genuinely try to reach an agreement, before making a decision about whether to grant or refuse the request.  The clause, which has been inserted into all modern awards, can be found here.

What Employers need to know

It is important for employers to understand the terms of the clause and its implications in the workplace.

Who can make a request? 

Employees (excluding casuals, unless they are long term casuals with a reasonable expectation of continuing employment of a regular and systematic basis) who have worked for their employer for a minimum of 12 months can make a request for flexible work arrangements.  

The employee must also: 

  • be a parent or carer responsible for a school aged child or younger; or
  • be a carer for an individual who is disabled, has a medical condition or illness, or is frail and aged; or
  • be over 55 years old; or
  • have a disability; or
  • be experiencing family violence; or
  • provide care for an immediate family member who is experiencing family violence.  

What an employer needs to do when a request is made

The Act allows an employer to refuse the request only on reasonable business grounds.  However, the Act does not require the employer to consult with the employee before making its decision, only that it must give the employee a written response to the request within 21 days, stating whether the request is refused or granted, and if refused, on what basis.  

The new modern award clause imposes a new consultation requirement requiring the employer to discuss the request with the employee and genuinely try to come to an agreement which will reasonably accommodate the employee's circumstances prior to making a decision.  

Refusing a request

Employers can only refuse a request on reasonable business grounds, which include circumstances where: 

  • the requested arrangement is too costly for the employer;
  • it is not possible to change another employee's working arrangement to accommodate the request; 
  • it is impractical to hire new employees or change another employee's working arrangement to accommodate the request; or
  • it would significantly decrease productivity or negatively affect customer service.

This new clause gives additional process rights to employees wanting a flexible work arrangement.  Employers must be alert to their obligations when refusing a request, and be ready to articulate the "reasonable business grounds" surrounding the refusal.  

If you have a query relating to any of the information in this article, or you require assistance with regard to changes to modern awards, please contact Coleman Greig's Employment Law Team -  we can help you to both identify the changes to the awards relevant to you and clarify what they may mean in practice, as well as outline your obligations to ensure proper compliance.

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