From 1 December 2018, all Modern Awards will include a new provision for Family Friendly Work Arrangements (FFWA) which supplements the National Employment Standards – Flexible Working Arrangements under section 65 of the Fair Work Act 2009 (Cth) (FW Act).
An employee covered by a Modern Award who has made a request for a change in working arrangements under the FW Act, is entitled to request a FFWA.
Currently, an employee may request a change in working arrangements where:
- the employee:
- is the parent, or has responsibility for the care, of a child who is of school age or younger;
- is a carer;
- has a disability;
- is 55 or older;
- is experiencing violence from a member of the employee’s family; or
- provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family; and
- the employee would like to change his or her working arrangements because of those circumstances; and
- the employee has completed the minimum employment period.
An employer has 21 days to provide a written response to the employee’s request under the FW Act, stating whether the employer grants or refuses the request.
However, the new award provision now requires an employer before responding to an employee’s request, to discuss the request with the employee and genuinely try to reach an agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances, having regard to:
- the needs of the employee arising from their circumstances;
- the consequences for the employee if changes in working arrangements are not made; and
- any reasonable business grounds for refusing the request.
An employer may refuse an employee’s request but only on reasonable business grounds which include:
- the new working arrangements requested by the employee would be too costly for the employer;
- there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
- it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
- the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;
- the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.
Notice of Refusal
Prior to the introduction of these provisions, an employer only had to include the reasons for the refusal. Now, for employees covered by a Modern Award, not only does an employer have to include the grounds for the refusal, they must also detail how the ground(s) apply.
Where the employer and employee could not agree on a change in working arrangements, the response must:
- 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
- if the employer can offer the employee such changes, set out those changes.
Notice of Agreed Changes
Where the employer and employee reach an agreement for a FFWA which differs from the employee’s initial request, the employer’s response must set out the agreed change(s) in working arrangements.
If a dispute arises about whether the employer has discussed the request with the employee and responded to the request in the manner required by the provision, the dispute can be dealt with under the dispute resolution clause of the applicable Modern Award.
Failing to comply
An employer who does not comply with this provision will contravene both the Modern Award and the FW Act and will be exposed to potential fines. Currently, the maximum penalties are:
Type of contravention
Considering the significant impact this provision has on both employees and employers, it is important to understand your rights and obligations.
We assist employees and employers with all aspects of employment, including entitlements and the application of the National Employment Standards and Modern Awards.
If you are an employee or an employee who requires assistance with a FFWA, please contact our Murdoch Lawyers Toowoomba.