New Rules for Flexible Work Requests
From December 1st this year, modern awards will include a new provision concerning employee rights to request family friendly working arrangements. The right already exists as part of the National Employment Standards (NES) but the Fair Work Commission has expanded on those provisions with this decision.
Essentially, the new provision requires an employer to discuss and genuinely try to reach agreement with a flexible working arrangement request from an employee. Eligibility to make a request rests on whether the employee is a parent or has responsibility for the care of a child who is of school age or younger, is a carer or has a disability. It also includes an employee who is 55 or older or who is experiencing domestic violence.
If the employer cannot accede to the request, then a written reason(s) for a refusal must be given to the employee within 21 days of the request being made.
Also, that written response must include advice about whether or not the employer can offer any alternative proposal to that which the employee requested, and if so, what that alternative is.
These provisions do not go so far as to require an employer to make changes. Nor do they permit the FWC power to arbitrate a dispute based on a refusal to a request. But the new provisions do permit an employee to invoke dispute settling procedures if the employee believes the employer has not followed the prescriptions of the clause.
While these provisions enhance the NES and apply to award dependent employees only, they will need to be considered in future agreement bargaining negotiations to ensure the better off overall test is met.
Review of modern awards – Family Friendly Work Arrangements [2018] FWCFB 6863 (20 November 2018)