The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 amends the Fair Work Act 2009 (FW Act), from 6 June 2023, to strengthen the right to request flexible working arrangements and an extension of unpaid parental leave.
When employers and employees cannot agree on a solution at the workplace level, the FWC will be able to deal with a dispute about a request. The commission may do this by conciliation, mediation, or mandatory arbitration if necessary.
FWC President Adam Hatcher has issued a statement about the changes.
“Both of these request types are currently included in the National Employment Standards (NES),” he said.
“However, the FW Act presently does not provide an avenue for employees to challenge the refusal of a request for flexible working arrangements or a request for an extension of unpaid parental leave that is said to be on reasonable business grounds, unless the parties have agreed to this in an employment contract, enterprise agreement or other written agreement or a public service determination authorises this.
“Two amendments are made so that the same rights of enforcement and dispute resolution which generally apply to the other NES entitlements are extended to requests for flexible working arrangements or an extension of unpaid parental leave.”
Contravening the National Employment Standards (section 44) is amended to the effect that civil remedy proceedings can be pursued (under Pt 4-1) where an employer contravenes section 65A or 76A.
Disputes dealt with by the FWC (section 739) and “dispute dealt with by persons other than the FWC (section 740) are amended so that the commission (or another person authorised to deal with a dispute) can deal with a dispute about whether an employer had reasonable business grounds to refuse a request for flexible working arrangements”.
It can also deal with an extension of unpaid parental leave pursuant to a dispute resolution term in a modern award, enterprise agreement, employment contract or other written agreement or a public service determination.
However, the commission will only be able to arbitrate a dispute about the reasonableness of the refusal of a request if the parties to the dispute have agreed to this, according to President Hatcher.
In addition, the commission will also be able to deal with disputes about requests for flexible working arrangements and extensions of unpaid parental leave under new subsections 65B, 65C, 76B and 76C. The commission will be able to deal with disputes under these new provisions as it considers appropriate, including by arbitration in certain circumstances.
Implementation of the amendments
The commission website will be updated to provide information on the new provisions and eligibility requirements for those wishing to apply to the commission to deal with a dispute.
Two new forms have been developed, which will be published in the coming weeks:
- A new Form F10C – Application for a dispute about flexible working arrangements is to be used to request that the commission deal with a dispute about a refusal of a request for flexible working arrangements under section 65B(4). It provides information about eligibility requirements and will ask applicants to indicate the reasons for making the request.
- A new Form F10B – Application for a dispute about extension of a period of unpaid parental leave is to be used to request that the commission deal with a dispute about a refusal of a request to extend unpaid parental leave under section 76B(3).
The FWC noted a response form had not been developed for these new dispute types. This is consistent with the process for section 739 disputes, where the commission does not seek an initial written response from the responding party.
The commission’s procedural rules relating to these forms will also be amended to deal with service requirements. Draft rules amendments will be published for consultation.
Review modern award model terms
Most modern awards include model terms relating to flexible working arrangements and dispute resolution, which may need to be reviewed in light of these changes, according to President Hatcher.
During the four-yearly reviews of modern awards, a model “requests for flexible working arrangements” term was inserted into most modern awards. There are 122 modern awards that contain the flexible work model term.
In addition, section 146(b) of the FW Act requires modern awards to include a term that provides a procedure for settling disputes in relation to the NES.
The terms of a model dispute resolution clause were determined during the award modernisation process and then amended during the four-yearly review by the plain language full bench. The model term was included in all industry and occupational modern awards.
“A full bench comprising myself, and vice presidents Catanzariti and Asbury will shortly commence a matter on the commission’s own motion to consider the interaction between these model award terms and the new NES provisions (ss 65B, 65C, 76B and 76C) concerning the resolution of disputes about refusals of requests for flexible working arrangements or extensions of unpaid parental leave. The full bench will issue a statement about this shortly,” President Hatcher said.
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