On 26 March 2018, the Full Bench of the FWC took a provisional view as to the terms of a clause to be inserted into modern awards to supplement s65 of the Fair Work Act, which provides certain employees with a right to request flexible working conditions.

The supplementary proposed provisions are:

  • the group of employees eligible to request a change in working arrangements relating to parental or caring responsibilities, will be expanded to include ongoing and casual employees with at least six months’ service but less than 12 months’ service;
  • for permanent employees the request may be made after 6 months service;
  • before refusing an employee’s request, the employer will be required to seek to confer with the employee and genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances;
  • If the employer refuses the request, the employer’s written response to the request will be required to include a more comprehensive explanation of the reasons for the refusal. The written response will also be required to include the details of any change in working arrangements that was agreed when the employer and employee conferred, or, if no change was agreed, the details of any changes in working arrangements that the employer can offer to the employee; and
  • A note will draw attention to the Commission’s (limited) capacity to deal with disputes.

The final form of the model clause will be determined within the next few months and we will provide an update at that time.