New model award term about requests for flexible working arrangements commences on 1 December 2018

A new model award term in relation to employee requests for flexible working arrangements will be included in all modern awards and will take effect from 1 December 2018. The new clause supplements existing obligations contained in the National Employment Standards (NES).

This new provision requires an employer to “discuss the request with the employee and genuinely try to reach agreement” in an attempt to “reasonably accommodate the employee’s circumstances”. There shall be consideration of:

• the employee’s needs;
• the consequences to the employee of refusing the request to change the employee’s working arrangements; and
• “any reasonable business grounds for refusing the request”.

An employer is to provide a response in writing to the employee within 21 days of receiving the employee’s request for flexibility.

If the request is refused and no agreement with the employee has been reached, the written response to the employee must include “details of the reasons for the refusal” including the business grounds for the refusal and how these business grounds apply in the circumstances. The written response also needs to include a statement as to whether or not the employer can offer any changes to the working arrangements “to better accommodate the employee’s circumstances” and details of any such changes.

Alternatively, if the employer and employee agree to a change in the working arrangements that is different to the employee’s initial request, these agreed changes shall be included in the written response to the employee.

Consistent with the existing limitations, unless a contract expressly confers power, the Fair Work Commission cannot arbitrate a dispute regarding whether the employer has reasonable business grounds upon which to refuse the request.

This new term is a result of the Fair Work Commission’s review of family friendly work arrangements during its 4-yearly review of modern awards.

4 yearly review of modern awards – Family Friendly Work Arrangements [2018] FWCFB 6863 (20 November 2018)

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.