5 December, 2022

Legislative amendments – Flexible work

Blog | Industry News

Comprehensive Fair Work Act 2009 (Cth) changes have been passed by Parliament in the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022. For a general summary of all changes and links to more detailed notes on each topic, please see our summary ,EMA Note.

This EMA Note focuses on the legislative changes related to flexible work as passed by Parliament. The most notable changes in relation to are the changes to grounds for refusing requests for flexible work arrangements and new dispute resolution processes for requests for flexible work arrangements.

The Bill introduces new provisions aimed at improving flexibility in work, including expanding the Fair Work Commission’s dispute resolution powers to include disputes about refusals to requests for flexible work arrangements.

What will change and when?

This note is not a comprehensive explanation of the changes and should not be relied on as advice. In summary:

• Employers will have additional obligations in relation to responding to employee requests for flexible working arrangements. These new obligations largely reflect the additional obligations introduced into modern awards at the end of 2018.
• Employers will still only be able to refuse requests for flexible working arrangements on reasonable business grounds (with the same examples provided in the Fair Work Act) and will still be required to provide details of the reason for refusal, but will now be required to additionally set out any changes that the employer could accommodate outside of those requested by the employee to help meet the employee’s circumstances requiring flexibility.
• The new obligations also provide that the employer may only refuse a request if the employer has discussed the request with the employee and has genuinely tried to reach agreement with the employee about making changes to accommodate the employee’s circumstances, and give consideration to the consequences of refusal for the employee and demonstrate that they did so.
• The circumstances in which employees will be able to request flexible work arrangements will be expanded to include where an employee or a member of their immediate family or household experiences family and domestic violence.
• Parties will be able to notify disputes to the Fair Work Commission, who must first try to resolve the dispute without arbitration but may arbitrate the dispute if other attempts to resolve it fail (or there are exceptional circumstances to move straight to arbitration). The Commission has broad powers in arbitration, up to (if otherwise unable to resolve the dispute) ordering an employer to grant the request or order that the employee change their request.
• Refusing to comply with a Fair Work Commission order relating to a flexible work arrangement will be a civil offence and may incur penalties.

These amendments will commence six months after the Bill receives royal assent.

What should employers do now?

While there will be a six-month period before these amendments come into effect, employers should review their internal policies and procedures on requests for flexible working arrangements to ensure they are consistent with the Fair Work Act changes. Employers should also ensure their managers and leaders are given enough information or training to know when they must agree to flexible working arrangements, when they may be able to refuse flexible working arrangements, and what steps must be taken throughout the entire process.

In the short term, EMA Consulting is available to assist in reviewing any such policies if needed. We will be reviewing and updating our template policies that are available for purchase (and for download for subscribers of My ERLibrary) to ensure our template policies are compliant with the new amendments.

In the medium to long run, we will also be available to assist in working through a flexible work request process with employees and assisting with any disputes that may arise.

Require further information/assistance?

This EMA Note is not comprehensive advice about your situation and does not cover all your obligations. If you require further information or advice, please contact your Consultant.

EMA Consulting is not a law firm and therefore does not provide legal advice or services. The information contained within this document and associated material is general in nature and should not be relied upon. If you require specific advice on a particular matter, we recommend that you contact EMA Consulting on 08 8203 1700. Subject to the matter at hand, your EMAC Consultant may recommend that you obtain formal legal advice. If formal legal advice is required, upon your written instruction EMAC will brief your matter to a legal practitioner for this purpose. The contents of this document and associated materials do not represent legal advice.