By Nicholas Morrison, Law Graduate & Brittany Sharpe, Law Clerk.
The recent Secure Jobs, Better Pay Amendment Act 2022 (Cth), has introduced changes to employee and employer obligations staggered to commence throughout the year. One area of significant change is dealing with an employee’s request for flexible working arrangements. These changes came into effect on 6 June 2023.
Previously, permanent employees who had been employed for at least 12 months of continuous service and certain long-term casual employees could request in writing a flexible working arrangement under section 65(1) of the Fair Work Act 2001 (Cth) (FW Act) if one of the prescribed circumstances in section 65(1A) of the FW Act applied to them, namely they were a parent, carer, had a disability, were 55 or older, experienced domestic violence, or provided care or support to a family member or member of their household who is experience domestic violence.
Upon receipt of the employee’s written request the employer had to provide a written response within 21 days granting or refusing the request. An employer could only refuse on reasonable business grounds as outlined in section 65(5A), which had to be explained in their written response. Providing the employer complied with the above procedure, merely refusing the request would not be a breach of the National employment Standards and the employee had no right of appeal.
… And now
Beyond small changes to the wording around family violence, most of the previous points remain the same, but now the employer’s obligations are more detailed, and the employee may appeal a refusal to the Fair Work Commission.
So, now the obligations on the employer are:
- You must provide a written response to the employee’s request within 21 days.
- Your response must state whether you are granting or refusing the request.
- If you agree to a compromise that varies from the employee’s initial request, the agreed changes must be in writing.
- If you are refusing the request, you must first:
- discuss the request with the employee;
- genuinely try to reach an agreement with the employee regarding he proposed changes;
- have regard to the consequences of refusing the employee’s request; and
- ensure that the refusal is made only on reasonable business grounds as outlined in section 65A(5).
- After the above, an employer may refuse the employee’s request in writing, but must:
- provide written reasons for the refusal, including the specific business grounds and explain how they apply to the employee’s specific request;
- state the changes you are willing to make or state that there are no changes you are willing to make to accommodate the request; and
- inform the employee that under sections 65B and 65C of the FW Act they may refer a dispute to the Fair Work Commission:
A failure to comply with the above is a breach of the National Employment Standards.
MDC Legal advises clients on employment obligations, entitlements and claims including under the National Employment Standards. We provide Management Guides and Employee Handbooks covering the full range compliance requirements under the FW Act.
 Section 65(2) of the FW Act