As part of the next raft of key changes to take effect from 6 June 2023, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 amendments to the Fair Work Act 2009 (Cth) (FWA) have strengthened employees’ right to request flexible working arrangements and an extension of unpaid parental leave.
The FWA does not currently provide any avenues for employees to challenge their employer’s rejection of requests for flexible working arrangements or an extension of unpaid parental leave. From 6 June 2023, not only will the eligibility and application processes change, but employees will also have access to strengthened enforcement and dispute resolution rights to challenge their employer’s decisions.
The changes that employers need to prepare for
From 6 June 2023, the right to request flexible working arrangements will be extended to:
- employees, or a member of their immediate family or household, experiencing family and domestic violence; and
- employees who are pregnant.
The application process for requests for flexible working arrangements and for an extension of unpaid parental leave will also change. Employers will need to undergo a more robust process when considering and responding to these requests, including providing employees a written response within 21 days that, in the event of refusal, provides employees with a detailed explanation of the reasons for the refusal as well as the effect of the new dispute provisions.
To comply with the new changes and reduce the chances of a dispute being brought to the Fair Work Commission (FWC), employers should ensure that they:
- set aside time with employees to properly and formally discuss flexible work and parental leave extension requests;
- consider the needs of the employee arising from their circumstances, alongside operational requirements;
- consider the consequences on the employee of refusing the employee’s request;
- in the case of flexible work requests, where possible, genuinely try to accommodate a change in working arrangements with the employee;
- where an employee’s request cannot be accommodated, suggest alternatives which the employer could accommodate; and
- update any relevant internal policies and procedures to ensure compliance with the new application process.
New dispute forms
If there is a dispute arising from a request for flexible working arrangements or an extension of unpaid parental leave, employees may make an application to the FWC using new forms soon to be published by the FWC.
The two new application forms that will be published by the FWC in the coming weeks are:
- A new ‘Form F10B – Application for a dispute about extension of a period of unpaid parental leave‘ that will allow an applicant to request that the FWC deal with a dispute about an application to extend unpaid parental leave for a further period of up to 12 months immediately following the end of the available parental leave period.
- A new ‘Form F10C – Application for a dispute about flexible working arrangements‘ that will allow an applicant to request that the FWC deal with a dispute about flexible working arrangement request.
There is no time limit for an application with the FWC for a request to deal with a dispute.
The dispute process
Before making an application, parties to the dispute must first attempt to resolve the dispute at the workplace level through discussion.
Once an application is made, a member can deal with the dispute by conducting a mediation, conducting a conciliation conference, making a recommendation or expressing an opinion. If the matter is not resolved, it may then be dealt with by arbitration hearing. Arbitration may also be the FWC’s first step, but only under exceptional circumstances.
If a matter reaches arbitration, the FWC may make any of the following orders after accounting for the balance of fairness between the circumstances of the employer and employee:
- if the employer has not given the employee a written response to the request – an order that the employer be taken to have refused the request;
- if the employer has not responded, or has not responded adequately, to the employee’s request – an order that the employer take such further steps as the FWC considers appropriate;
- if the employer has refused a request:
- an order that the grounds for refusal are taken to be reasonable, or not reasonable;
- an order that the employer grant the request;
- for disputes relating to flexible work requests – an order that the employer make specified changes (other than those already requested) to the employee’s working arrangements to ‘accommodate, to any extent, the employee’s circumstances’; or
- for disputes relating to extensions of parental leave – an order that the employer agree to an extension of unpaid parental leave for a further period of up to 12 months, other than the period requested by the employee.
Orders requiring an employer to grant a request (including with amendments) can only be made if the FWC is satisfied that there is no reasonable prospect of the dispute being resolved without the making of such an order.