Flexible Working Arrangements In The New Financial Year

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Changes to flexible working arrangements have been in place since 6 June 2023. If you haven’t done so already, now is the time to get acquainted with the new legislation (The Secure Jobs, Better Pay Act 2022 (Act)).

The legislation has updated the laws governing requests for flexible working arrangements and introduced new provisions that enable the Fair Work Commission to settle disputes related to such requests.

The Act enhances the existing rights to request flexible work arrangements as outlined in section 65(1A) of the Fair Work Act 2009 (Cth) by broadening the situations in which an employee can seek flexible arrangements.

This now includes cases where an employee, or someone from their immediate family or household, encounters “family and domestic violence”, as outlined in section 106B(2) of the Act.

Additionally, the Act incorporates a new section, 65A, mandating that an employer who receives a request for flexible work arrangements must:

  • meet with the employee to discuss their request for flexible work; and
  • if the employer plans to decline the flexible work request, either reach a mutual agreement on alternative changes to the employee’s working arrangements and record the agreed-upon changes in the employer’s written response; or
  • should the employer still intend to refuse the request, specify the reasonable business grounds for the refusal and address the following:
    • possible adjustments to the employee’s working conditions that could accommodate (to a certain extent) the employee’s situation and that the employer is willing to make; or
    • that the employer is unable to implement such adjustments to accommodate the employee’s circumstances.

The Act introduces a dispute resolution mechanism for situations where an employer has:

  • denied a flexible work request; or
  • failed to provide a written response to a flexible request within 21 days; and
  • the parties cannot resolve the dispute through discussions at the workplace level.

Employers should ensure they are in compliance with the new conditions by:

  • updating their approach to assessing and responding to employees’ flexible work requests to incorporate the requirements to:
    • meet with the employee and discuss their request; and
    • inform the employee of any changes to working arrangements the employer is willing to consider to accommodate their situation.
  • assessing any barriers to their ability to provide flexible working arrangements to employees (considering the nature of the business) and the potential evidence needed to demonstrate these barriers.
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