Changes to Flexible Work Arrangements and Extending Unpaid Parental Leave

As of 6th June 2023, the Fair Work Legislation Secure Jobs, Better Pay Act 2022, which amends the Fair Work Act 2009, flexible work arrangements (FWA) and extended unpaid parental leave entitlements, came into effect.?The changes specifically relate to how both entitlements are accessed.

Firstly, the employer is responsible for responding to a request for an FWA or extension in writing and within 21 days of the request. ?The response must explicitly state whether,

1. The request has been approved, or
2. An alternative agreement between the employer and employee arising from a previous ‘discussion,’ between the parties has been approved, or
3. The request has been rejected

The amendment requires that the request may only be rejected if the parties previously ‘discussed’ the request, with genuine intent to negotiate conditions of the FWA/extension, favourable to both the employee and the needs of the business.?The amendment doesn’t clarify what constitutes ‘discussion,’ however.?Thus, whether this includes merely an email exchange or a face-to-face discussion is unclear. ?The latter, recorded in writing is probably safer until such time the definition becomes the subject of a test case.

The amendment also requires that an employer’s written response to refuse a FWA or extension request explicitly explains/state the following;

• The business grounds the request was refused
• How those same business grounds relate to the request.
• ?An alternative FWA or extension the employer is willing to accept or that no alternatives are available and,
• That the employee may apply to the FWC to resolve the dispute through conciliation or arbitration should there be no resolution.

Refusing a request must be based on ‘reasonable business grounds’ and take into consideration the impact on the employee’s personal circumstances.?

‘Reasonable business grounds’ includes consideration of ‘the nature and size of the enterprise carried on by the employer,’ plus meets any of the following criteria,

• The FWA or extension would be too costly for the employer.
• There is no capacity, or it would be impractical to change the work arrangements of other employees impacted by the FWA/extension.?This also covers the impracticality of the employer having to recruit new employees to accommodate the request.
• Accommodating the FWA/extension would have a significant deleterious impact on operational efficiency, productivity, or customer service.

In addition to these changes, the Fair Work Commission (FWC) now has the power to intervene to resolve disputes between employees and employers in situations whereby; An employer rejects or fails to respond within 21 days to a request for either a FWA or extended unpaid parental leave.

In the first instance, the FWC may attempt to resolve the dispute through conciliation.?Failing, this, the FWC may arbitrate the dispute, by ordering the employer to respond to the request, or determining if the business case for rejecting the request was on reasonable business grounds. ?If the business case brought by the employer is found to not be on reasonable business grounds, the FWC may order the employer to grant the FWA/extension or grant the FWA/extension as close to the employee’s original request as possible.

The FWC will release in the coming weeks two new forms, F10C–Application for a dispute about flexible working arrangements and F10B–Application for a dispute about extension of a period of unpaid parental leave. The forms may be lodged by an employee wanting the FWC to deal with a dispute arising from their employer refusing a FWA or extension request respectively.

Lastly, the eligibility criteria for requesting an FWA have been expanded to include being pregnant or experiencing family or domestic violence.