On 25 September 2018 the Full Bench of the Fair Work Commission handed down a Flexible Work Decision that proposes to insert a model work flexibility clause that will supplement the current legislation and likely expand an employer’s obligations when considering requests for flexible working arrangements.

The model work flexibility clause is intended to supplement, rather than replace, employers’ current obligations in relation to requests for flexible work arrangement under section 65 of the Fair Work Act 2009 (Cth).

While the model work flexibility clause has not yet been included in any Modern Awards, it is likely that the changes will take effect in the coming months. Employers should understand the proposed changes in the model work flexibility clause to ensure they are prepared for the changes.

What new obligations are being proposed in the model work flexibility clause?

The new obligations proposed in the model work flexibility clause will allow certain employees to request a change in working arrangements based on their parental or caring responsibilities but are not intended to apply to employees requesting flexible work arrangements due to a disability, being over 55-years-old or experiencing domestic violence.

The model work flexibility clause proposes to supplement the current legislative requirements concerning requests for flexible work arrangements in the following ways:

  • before responding to an employee’s request, an employer must discuss the request with the employee and genuinely try to reach agreement on a change in working arrangements that takes the employee’s circumstances into account;
  • if an employer refuses the request, the written response must now include:

o details of the business ground(s) for the refusal and how those grounds apply; and o details of alternative working arrangements the employer can provide to accommodate the employee’s circumstances; and

  • employees can now dispute whether employers have correctly followed these processes. However, unless specifically permitted in an enterprise agreement or employment contract, a dispute about whether the employer’s business grounds for refusing the request are reasonable cannot be challenged.

The Full Bench expressed the provisional view that the model work flexibility clause should be inserted into all Modern Awards. This provisional view will only be displaced where it is demonstrated to the Full Bench that there are particular matters or circumstances specific to an individual Modern Award that demonstrate the achievement of that Award’s objective does not require the inclusion of the model work flexibility clause.

What does this mean for employers?

As many employers already have practices that reflect the proposed terms, this change is unlikely to be too arduous for employers. However, employers should still be mindful of the additional obligations intended to be included in Modern Awards when considering requests for flexible working arrangements. Employers are encouraged to review existing policies and procedures to ensure they are compliant with the new provisions and seek advice on policies where they believe there may be deficiencies. Employers will continue to be able to refuse requests based on (genuine) reasonable business grounds. Watch this space for more details once the Full Bench has completed its review and determined the final work flexibility clause to be inserted into Modern Awards.