Flexible Working Rights to be Included in Awards

In September 2017, the Fair Work Commission expressed a provisional view that all modern awards be varied to insert a flexible working arrangements clause, which would expand on the right for employees to request flexible working arrangements under the Fair Work Act 2009. The Commission recently determined that this model term will be inserted into all modern awards as part of the 4 yearly review with effect from 1 December 2018.

The model clause

Under 65 of the Fair Work Act 2009, certain employees can request flexible working arrangements in writing, setting out the reasons for the request. If an employer receives a request, they must accept or decline the request in writing within 21 days, including the reasons for the refusal if the employer is unable to accommodate the request.

The model clause expands on these requirements by requiring the employer to discuss the request with the employee and attempt to reach agreement on a working arrangement that will accommodate the employee’s circumstances, having regard for the needs of the employee, the consequences for the employee and any reasonable business grounds.

The clause also sets out what must be included in the written response required under s 65 in the event the employer refuses the request. If the employer and employee are unable agree on a change,  the written response must:

  1. state 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
  2. if the employer can offer the employee such changes in working arrangements, set out those changes in working arrangements.

If an alternative arrangement can be agreed, the response must set out the terms of this arrangement.

Any disputes arising under the model clause are to be dealt with in accordance with the relevant dispute resolution clause.

Implications for employers

In preparation for these additional requirements, employers should review any relevant workplace policies that deal with flexible working arrangements for compliance and ensure that when award covered employees apply for flexible working arrangements after 1 December 2018 that the new award clause is complied with.

Please click the link below to view the full decision, including the model clause set out in full:
4 yearly review of modern awards – Family Friendly Work Arrangements [2018] FWCFB 6863


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