In our most recent article in the ‘IR Deep Dive’ series, we explored new obligations on employers to eliminate sexual harassment in the workplace following the Human Right’s Commission’s landmark ‘Respect@Work Report’.

In this article, we delve into the legislative changes introduced under the 'Secure Jobs, Better Pay' Act, which “strengthen” employer obligations when considering requests for flexible work and providing a new dispute resolution process where a request for flexible working arrangements is denied or not responded to in time.

The Changes ‘At a Glance’

Beginning on June 6, 2023, the 'Secure Jobs, Better Pay' Act amendments will introduce changes to flexibility requests made under the Fair Work Act by:

1. Broadening eligibility so that more employees can request a flexibility arrangement resulting in more individuals being able to make such requests.
2. Updating the review process to require employers to engage in discussions, make genuine efforts to reach agreement, and provide valid reasons when refusing a request.
3. Introduce new dispute resolution avenues by giving employees the option to appeal an employer's decision or failure to respond to a request through the Fair Work Commission.

It's important to note that while these changes are substantial, they do not establish a "universal right" for employees to request work-from-home arrangements.

Who is Eligible to Request a Flexibility Arrangement?

Under Australia’s "National Employment Standards" employees (including casual employees in some circumstances) are eligible to request a workplace flexibility arrangement if they have completed at least 12 months’ continuous service immediately prior to making the request, and if the employee:

• is the parent, or has responsibility for the care, of a child who is of school age or younger;
• is a carer (within the meaning of the Carer Recognition Act 2010);
• has a disability;
• is 55 or older;
• is pregnant; or
• the employee, or members of their immediate family or household) experiences family and domestic violence.

The last two categories were newly introduced as part of the recent amendments.

What if a Request is Received: How do Employers Respond?

Employers must respond to a request for flexible working arrangements in writing within 21 days, advising whether they grant or refuse the request. The Act inserts a new ‘section 65A’ which now requires employers to effectively negotiate the request by considering alternative arrangements.

Specifically, under the new changes, employers who receive a request for flexible working arrangements will need to:

1. Meet with an employee to discuss their flexible work request. This should occur whether the request is approved or refused to ensure that all parties are clear on the terms of the request, for how long it will be approved, and any other steps that will be taken, such as agreeing to enter a written flexible work arrangement (which is recommended).
2. Where an employer intends to refuse the flexible work request but agrees upon alternative changes to the employee’s working arrangements, these should be reflected in the employer's written response, and a written flexible work agreement (again, recommended).
3. If despite the above, the employer still intends to refuse the request, the employer must outline their “reasonable business grounds” for refusal and address the following:
   1. Changes to the employee's working arrangement that would accommodate (to any extent) the employee's circumstances that the employer would be willing to make; or
   2. That there are no such changes the employer could make to accommodate the employee's circumstances.

It is crucial to clearly articulate any refusal in writing, ensuring that the basis for refusal outlines clearly the “reasonable business grounds” that the refusal is made on. The ‘reasonable business grounds’ for a refusal are a common point of contention and should be carefully considered. Our experience tells us that many flexibility ‘disputes’ can be resolved by considering alternative arrangements and thinking about ways to suit both the business and employee’s needs.

Common Pitfalls to Avoid When Considering Flexibility Arrangements

Navigating the framework of workplace flexibility can be intricate and challenging. One of the most common issues employers encounter is complying with the strict timeframes for responding to requests or providing valid 'reasonable business grounds' under the Act.

How can Nellers HR help?

Nellers have a range of products and services that can assist with preparing for, considering, and responding to workplace flexibility requests, including:

• A range of up-to-date policy options to suit your organisation
• Training for HR professionals, management and leadership
• Templates, scripting, and process design support documentation,
• Support assessing and responding to flexibility requests, and
• Dispute resolution support.