Flexible working arrangements

Public news

Requests for flexible working arrangements form part of the ten National Employment Standards (NES) under Section 65 of the Fair Work Act. The Section deals with the rights of certain employees to request flexible working arrangements from their employer because of the employee’s ‘circumstances’, and also allows for the ability of the employer to refuse any such request on ‘reasonable business grounds.’

The Fair Work Commission (FWC) has now handed down a decision on ‘family friendly work arrangements’ as part of the 4 yearly reviews of modern awards. The decision inserts a model clause into all modern awards and will be supplementary to the provisions of s 65 of the Act. Both the Vehicle Award and the Clerks Award have consequently been amended to include the model clause with an operative date of the first full pay period commencing on or after 1 December 2018.

Who is entitled to make a request?

  • an employee ( other than a casual employee) with at least 12 months continuous service
  • a long term casual employee with at least 12 months continuous service who has an ongoing expectation of being employed by the employer on a regular and systematic basis
  • requires an employer to make a genuine attempt to reach agreement with an employee on a change in working arrangements to accommodate the employee’s circumstances
  • compels the employer to consider and propose any alternative work arrangements that can assist the employee
  • requires the employer to respond in writing to employee within 21 days , either granting or refusing the request
  • if the request is refused, to provide details of the reasons for the refusal and stating whether any alternative work arrangements are offered to accommodate the employee’s circumstances
  • allows an employee to dispute an employer’s refusal if the employer has not followed the correct process in responding to the request
  • if a different work arrangement is agreed (than was initially requested), the details of those arrangements in writing.

What are the employee’s circumstances?

An employee can request an employer for a change in working arrangements if the employee:

  • is a parent or responsible for the care of a child who is of school age or younger
  • is a carer ( as recognised in the Carer’s Act)
  • has a disability
  • is 55 years of age or older
  • is experiencing violence from a member of their family
  • is providing care or support to a member of the employee’s immediate family who is experiencing violence from the member’s family

The employee’s request must be in writing.

What are the requirements stipulated in the model clause?

The model clause:

  • requires an employer to make a genuine attempt to reach agreement with an employee on a change in working arrangements to accommodate the employee’s circumstances
  • compels the employer to consider and propose any alternative work arrangements that can assist the employee
  • requires the employer to respond in writing to employee within 21 days , either granting or refusing the request
  • if the request is refused, to provide details of the reasons for the refusal and stating whether any alternative work arrangements are offered to accommodate the employee’s circumstances
  • allows an employee to dispute an employer’s refusal if the employer has not followed the correct process in responding to the request
  • if a different work arrangement is agreed (than was initially requested), the details of those arrangements in writing.
Members interested in discussing or accessing the respective Determinations in the Vehicle Award and / or the Clerks Award, should contact the MTA’s Workplace Relations team by clicking here.