Australia: Flexible working arrangements – Additional rights for employees from 6 June 2023: Part 1 of 2

Introduction

As remarked upon in a recent article on the massive changes to Australian workplace relations law enacted in December 2022¹, the reforms to workplace law on the subject of flexible working arrangements, commencing 6 June 2023, are extensive and quite significant.

This article examines these changes, and does so in two parts.

This first part summarises the law prior to the commencement of these changes, and then examines the extended categories of employees who will be able to access flexible working arrangements. The second part of the article, to be published soon, looks at the additional procedural rights of employees in this area, as we all as the extended jurisdiction of the Fair Work Commission to conciliate and arbitrate disputes on these matters.

Limits on employee rights prior to SJBP Act

The right of an employee to request flexible working arrangements has been one of the National Employment Standards prescribed by Federal workplace law since 2009,² albeit a right that was a limited one in a number of respects. In particular the right was a right to request such arrangements, and only applied to employees who satisfied certain criteria specified in Section 65 (including having 12 months of continuous service with the employer and being either over 55 years of age, or having a disability, or having carer's responsibilities, or being a parent of a school age child, or experiencing violence from a member of their family).

The right to request flexible working arrangements was a valuable new right when introduced, but on the other hand the NES did not give an employee the right to appeal a decision by an employer to refuse any such request. That is, under the principal section, Section 65, the qualified employee was entitled to make a request in writing for flexible arrangements and the employer had to provide an answer within 21 days of receipt of that request. The employer could only refuse the request on "reasonable business grounds", a non exclusive list of which grounds was set out in Section 65 (5A). If the employer did refuse the request, written reasons for the refusal had to be given. That is where the right provided by the NES ended. There was no right of appeal against such a refusal set forth in the FW Act, so in the event of a refusal the aggrieved employee might have to apply to a State tribunal under a relevant anti discrimination law, if such a right existed. Enterprise agreements could make provision for appeal rights, but such provisions were rare. Various modern awards have in recent years incorporated supplementary provisions in relation to requests for flexible working arrangements, including allowing the FWC to deal with a case where an employer has rejected a request from an employee. However, its powers were limited in that it could only mediate or conciliate between the parties and could only arbitrate where both parties agreed.³

Section 65 also had another limitation on its effectiveness: there was no obligation on the employer and employee to seek to find common ground or a compromise arrangement, if the employer did not wish to approve the precise request that was made. Amendments to various modern awards have overcome this deficiency for some employees (e.g. clerical and administrative employees in many industries) by imposing on employers obligations to try to accommodate the employee's request, including by discussing the matter with the employee and trying to negotiate alternative arrangements that are mutually acceptable even if the employer cannot accommodate the employee's initial request. ⁴

Main changes made by SJBP Act - summary

The amendments made by the SJBP Act to Division 4 of Part 2-2 in Chapter 2 of the FW Act amend Section 65 of it and introduced new Sections 65A, 65B and 65C.

The amendments to Section 65 extended the categories of employees who can make a request for flexible working arrangements (i.e. pregnant employees and those suffering family and domestic violence). Section 65A enhances the rights of an employee in relation to a request for flexible working arrangements, while Sections 65B and 65C respectively give an employee the right to appeal to the FWC against the refusal of a request, and empower the FWC to settle such appeals through use of all of its powers, including the power of arbitration if necessary.

New categories of employees who may request flexible arrangements

Somewhat surprisingly, prior to the SJBP Act being pregnant did not give an employee a right to request flexible working arrangements. That anomaly has been removed by the SJBP Act, albeit by way of a very late addition to the Bill just prior to its enactment, being the insertion of a new paragraph (aa) in Section 65 (1A) ("the employee is pregnant").

Further, the right of an employee suffering domestic violence to seek flexible arrangements has been expanded from "the employee is experiencing violence from a member of the employee's family" to "the employee is experiencing family and domestic violence". The expression "family and domestic violence" is defined expansively in Section 106B(2). That definition was an integral part of a number of previous amendments to the FW Act, initially establishing unpaid family and domestic violence leave as an additional National Employment Standard, then subsequently providing for such leave to be paid⁵. The definition of "family and domestic violence" is:

"violent, threatening or other abusive behaviour by a close relative of an employee, a member of an employee's household, or a current or former intimate partner of an employee that: (a)seeks to coerce or control the employee; or (b) causes the employee harm or to be fearful."

[It is also to be noted that recently a Senate Select Committee recommended that the right to request flexible working arrangements be made available to all workers, not just those in particular categories specified in the FW Act. ⁶ It is thus possible that in the not too distant future there will be a broadening of eligibility to make these requests.]

Second part of this Article to come

In the second part of this Article the other major changes made by the SJBP Act in the area of flexible working arrangements will be examined, namely the additional procedural rights of employees (that will enhance the prospects of requests for such arrangements being either granted or granted in modified form), and the new jurisdiction of the FWC to conciliate and arbitrate disputes on these matters.

Footnotes

¹ Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) ("the SJBP Act") and article published on this website on 12 April 2023 "Federal Secure Jobs, Better Pay Act - It's not just about workplace bargaining!"

² Fair Work Act 2009 (Cth) ("FW Act") Chapter 2, Part 2-2, National Employment Standards ("NES"), Division 4

³ See for example Clauses 6.5 and 40.5 of the Clerks - Private Industry Award.

⁴ See for example Clause 6.2 and 6.4 of the Clerks - Private Industry Award 2020.

⁵ see Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 (Cth), enacted 9 November 2022 and substantively commenced 1 February 2023.

⁶ See Interim Report of Senate Select Committee on Work and Care, October 2022, Recommendation 6.35, pp.109-110.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.