The well publicised anti-bullying measures included in the most recent amendments to the Fair Work Act 2009 (Cth) (FW Act), were only one of the important changes made in the amending Act. In this edition we look at the new changes made to promote family friendly workplace practices – some of which commenced on 1 July 2013, well ahead of the 1 January 2014 start date for most of the other changes. There are three key strands to the family friendly measures.

1. Right to Request Flexible Working Arrangements (from 1 July 2013)

The right to request flexible working arrangements under section 65 of the FW Act has been significantly expanded in scope and further clarified. Employees with the right to request flexible working arrangements has been broadened, from people caring for either children under school age or those with a disability, to also include:

  • parents of school age children;
  • carers;
  • workers with disability or over 55; or
  • workers experiencing domestic violence.

To avoid any doubt, the amended provisions clarify that an employee who is a parent may request to work part-time to assist in the care of a child.

There is also new guidance on what constitutes reasonable business grounds, being the basis upon which an employer can reject a request for flexible working arrangements. A new (non-exhaustive) list describes reasonable business grounds to include when:

  • the flexible work arrangement is too costly;
  • there is no capacity to make the requested change;
  • it is impractical to change the working arrangements of other employees;
  • there is likely to be a significant loss in efficiency or productivity; or
  • there is likely to be a significant negative impact on customer service.

2. Leave During Pregnancy and After Birth or Adoption (from 1 July 2013)

A number of minor changes/clarifications have been made in relation to the parental leave provisions – so that work is safer during pregnancy and leave is more flexible:

  • pregnant employees with less than 12 months service will now have access to the right to transfer to a safe job and unpaid special maternity leave under the revised sections 80-82 of the FW Act if they meet the specific requirements;
  • to avoid any doubt, the amendments clarify all pregnant employees can take accrued paid leave rather than unpaid special maternity leave, if they so choose;
  • any period of unpaid special maternity leave will no longer be offset against the period of parental leave; and
  • there is an expanded entitlement of up to eight weeks concurrent unpaid parental leave for a couple as well as more flexibility in when this leave can be taken (under sections 70-80 FW Act).

Did you know? … 

Although an employer is prohibited from paying wages to employees participating in protected industrial action, the High Court has recently confirmed that the employer is still required to ensure employees continue to receive non-monetary benefits. This could include, for example, continuing to provide employees with food and accommodation for the duration of any protected industrial action which will have particular significance for employers of FIFO workers.

CFMEU v Mammoet Australia Pty Ltd [2013] HCA 36

3. Consultation to Change Hours (to commence 1 January 2014)

The genuine consultation of employees required under the consultation clause included in modern awards and enterprise agreements (sections 139 and 205 FW Act respectively), will include proposed changes to normal hours of work. While employers must already consult with employees about major workplace change, to avoid any doubt, future consultation clauses will expressly require employers to consult with employees when seeking to change an employee’s regular roster or ordinary hours of work.

What should employers do?

Employers should ensure they are familiar with the statutory entitlements of employees with family and carer responsibilities, including the right to request flexible working arrangements and the pregnancy and parental leave entitlements which form part of the National Employment Standards.

With respect to the right to request flexible working arrangements, while the new guidance on what constitutes reasonable business grounds is yet to be tested, the wording of the amended provision implies a higher bar has been set for employers before they can legitimately reject a request.

To avoid breaching the standards and risking civil penalties, employers should review their employment agreement templates and policies to ensure they are compliant with the amended Fair Work provisions.

Legislation update

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