While 1 November marked a major compliance deadline, it is 1 December that new rules regarding flexible working arrangements for employees under industry awards take effect.
The change was made by the Fair Work Commission as part of its four-yearly review of modern awards.
Under the amendment, “An employer may only refuse a s.65 request for a change in working arrangements on ‘reasonable business grounds”.
In its judgement, the commission stated that:
“Before responding to a request made under s.65 [of the Fair Work Act], the employer must discuss the request with the employee and genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances having regard to:
- the needs of the employee arising from their circumstances;
- the consequences for the employee if changes in working arrangements are not made; and
- any reasonable business grounds for refusing the request.
“The employer must give the employee a written response to an employee’s s.65 request within 21 days, stating whether the employer grants or refuses the request.
“If the employer refuses the request, the written response must include details of the reasons for the refusal.”
Flexibility not guaranteed
From this date, noted Michael Wilkinson, a senior adviser at Employsure, employers will be required to make a genuine attempt to reach an agreement on flexible working arrangements, and to show detailed reasons for any refusals given.
“While workers don’t have an uninhibited right to their flexible work request, the new clause requires employers to detail any alternative arrangements they can provide and lets workers dispute whether employers have correctly followed the process,” the senior adviser said.
According to Mr Wilkinson, the new rules do not guarantee employees automatic rights to flexible arrangements, but they will be guaranteed the right to explanations why their requests may be denied following negotiations between the parties.
“Let’s say you approach your boss with a request to work from home two days per week. Your boss can refuse your request; however, they need to justify the reasonable business grounds, then state whether alternative options or a counteroffer is available,” Mr Wilkinson said.
Mr Wilkinson said that it is “quite common” for employers to reject requests for flexibility because it is too expensive to provide the necessary equipment, but also because of the belief that “the job simply cannot be done effectively from home”.
While cost may be a legitimate constraint, if communicated to the relevant employee, a personal bias by the manager against flexible working will not cut it.
“If an employee asks his or her boss to leave early twice a week for family commitments, employers need to consider how they will fill the gap. Is it necessary to fill the gap? Will significant change be required for the gap? If the gap needs to be filled, how much will it cost the business to fill such as advertising and training?” Mr Wilkinson said.
He urged employers to “be reasonable” in their approach to assessing any request for flexible arrangements, while reiterating that employers will remain within their rights to ensure employee performance is not compromised by granting such requests.
“Good businesses generally take these steps anyway, on the basis they value their staff,” the senior adviser said.
“For those businesses that aren’t currently flexible, they will need to bring their policies and practices into line from 1 December 2018.”
Required inclusions for denying a request for flexible working
The commission ruled that where employee requests are denied, their employer must provide a written response outlining the following points:
- Details of the reasons for the refusal, including the business ground or grounds for the refusal and how the ground or grounds apply.
- If the employer and employee could not agree on a change in working arrangements, a statement of whether or not there are any changes in working arrangements that the employer can offer the employee so as to better accommodate the employee’s circumstances; and if the employer can offer the employee such changes in working arrangements, set out those changes in working arrangements.
- If a change in working arrangements is agreed that was different from the original request, the written response needs to set out the agreed change(s) in working arrangements.