Awards: parents/carers win flexible working clause

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Awards: parents/carers win flexible working clause

The FWC has rejected union calls for parents and carers to have the right to set their own hours, but plans to insert a new clause into modern awards aimed at facilitating flexible work requests.

The Fair Work Commission yesterday rejected a claim by the Australian Council of Trade Unions that, if successful, would have unilaterally granted parents and carers the right to set their working hours.

Instead, the FWC provisionally decided that all modern awards should have a clause that would require employers to confer with employees who request a change in working arrangements. Employers would have to provide a comprehensive explanation for any refusal to accomodate a worker's request. 

This "family friendly" test case decision was handed down as part of the Four Yearly Review of Modern Awards.

Background


The family friendly work arrangements (AM2015/2) common issue proceedings centred around a claim by the ACTU which sought to impose a model term in all modern awards that would allow employees with parenting or caring responsibilities to unilaterally:
  • select their hours of work to accommodate their parenting/caring responsibilities
  • for employees with parenting responsibilities, revert to their original hours of work at any time prior to their child attending school; and 
  • for employees with caring responsibilities, revert to their original hours of work within two years of commencing flexible hours. 
Importantly, an employer would not be able to refuse an employee’s proposal on reasonable business grounds (or indeed any grounds at all). 
 
The claim would mark a significant departure from the current operation of the law under section 65 of the Fair Work Act 2009 (Cth) where employees have a right to make a request for flexible working arrangements which employers can refuse on reasonable business grounds.

ABLA played a leading role in the proceedings, representing the Australian Chamber of Commerce and Industry.

The decision


While the desirability of increased labour force participation by parents and carers was acknowledged by the Full Bench of the Fair Work Commission, the Full Bench rejected the claim on the basis that it would fundamentally alter the employment relationship and has the potential to have a substantial adverse impact on business.

However, the Full Bench did determine (on a provisional basis subject to further submissions by the parties), that all modern awards should be varied to incorporate a model term related to facilitating flexible working arrangements.

FWC model clause facilitating flexible working arrangements 


The model clause proposed by the Full Bench proposes to supplement s65 of the National Employment Standards by:
  • expanding the group of employees eligible to request a change in work arrangements to include ongoing and casual employees with at least six months’ service with an employer (compared to the current threshold of 12 months for a more limited group of employees);
  • requiring an employer to seek to confer with an employee before refusing an employee’s request to genuinely try to reach an agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances; and
  • requiring an employer to provide a comprehensive explanation of the reasons for the refusal in writing including the details of any change in working arrangements that was agreed or if no change is agreed, the details of any changes in working arrangements that the employer can offer to the employee.
The parties have now been invited to provide submissions on the Full Bench’s model term and ABLA will be providing its comments on the model term.

Effect on businesses


The refusal of the ACTU’s original claim represents a very important restatement of the principle that an employer should be able to determine the hours of work it requires from its employees.
 
Nigel Ward, CEO of Australian Business Lawyers & Advisors and lead advocate in the case, said:“The ACTU was asking the Fair Work Commission in this case to fundamentally change the employer/employee relationship in Australia and cross over to a system where an employer no longer had control of the organisation of its staff and it was left to employees to decide when they wished to work. The overwhelming evidence heard in the case was that the vast majority of employees who request flexibility are being granted their requests. Employers and employees are getting this right. The result is a common sense one for employers and will afford employees greater rights in asking for, but not demanding, flexibility in their roles.”
 
The proposed new clause will mean some more “red tape” around consultation, like obligations with parents or employees with caring responsibilities, however is unlikely to fundamentally alter business practice.

Author: Elizabeth Kenny is an associate with Australian Business Lawyers and Advisors and she worked extensively on the matter.  Both ABLA and WorkplaceInfo are owned by the NSW Business Chamber

Further reading

"4 yearly review of modern awards – Family Friendly Working Arrangements,
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