The third amendment to the Fair Work Legislation (Secure Jobs Better Pay) Act came into effect this week, from 6 June 2023, expanding the circumstances in which an employee can request flexible work arrangements and requiring employers to formally respond to such requests.

NOTE – this will likely require existing Flexible Work Policies and Procedures to be updated – please read the below information carefully and reach out to the Common Goal Consulting team if you have any questions or require assistance with policy updates.

Changes to flexible work requests

Effective 6 June 2023, employees who are pregnant or impacted by family or domestic violence will have the right to request flexible work arrangements.

The updated legislation will allow employees (other than casual employees) who have worked for the same employer for over twelve months to request flexible arrangements if they:

• – are the parent, or have responsibility for the care, of a child who is school aged or younger
• – are a carer (under the Carer Recognition Act 2010)
• – have a disability
• – are 55 or older
• – are experiencing violence from a member of the employee’s family, or
• – provide care or support to a member of their household or immediate family who requires care or support because that person is experiencing violence from their family
• – are employees, or a member of their immediate family or household, experiencing family and domestic violence (as of 6 June 2023) *NEW
• – are pregnant (as of 6 June 2023) *NEW
•  

Examples of changes in working arrangements may include:

• – changes in hours of work (for example, reduction in hours worked, changes to start/finish times),
• – changes in patterns of work (for example, working ‘split-shifts’ or job-sharing arrangements)
• – changes in location of work (for example, working from home or another location)
•  

Casual employees can also make a request if they’ve been working for the same employer regularly and systematically for at least 12 months and if there’s a reasonable expectation of continuing work with the employer on a regular and systematic basis.

Employer responsibilities

The amended legislation also includes a more stringent process that employers must follow when considering flexible work requests from 6 June 2023.

As an employer, upon receiving a request for a flexible work arrangement from an eligible employee (see list above), you are obligated to:

1. Discuss the request with your employee
2. Make a genuine attempt to come to an arrangement that will accommodate the employee’s individual circumstances
3. Consider the consequences for the employee if the request is refused
4. Have reasonable business grounds if you decide to refuse the request

A written response must be provided to your employee within 21 days of receiving their request, specifying whether the request is approved or refused.

If you are refusing the request, your written response must include the following:

• – Details of the business grounds for the refusal, and how the grounds apply in relation to this specific request
• – Any changes in working arrangements that you can offer to better accommodate the employee’s circumstances
•  

If your employee agrees to changes to their working arrangements that differ from their request, as an employer, you must confirm these agreed changes in writing within 21 days of the original request.

Escalation to the Fair Work Commission – NEW

If an employee’s flexible leave request has been refused, or an employer has failed to provide a written response within 21 days, the updated legislation now provides the employee with the option of escalating the dispute to the Fair Work Commission.

If a dispute is brought to the Fair Work Commission, the matter will be dealt with by mediation or conciliation. If no result is achieved, then the dispute will be brought to arbitration, and an order will be made by the Commission.

This is a significant change to current processes. If you are unsure of what this means for your business, or you would like to update any existing policies and procedures, please reach out to our team to discuss.

Be prepared

With only 21 days to respond to a flexible leave request, it’s important that you fully understand your obligations under these changes to the Fair Work Legislation.

Contact Common Goal Consulting Director Nikki Jenkinson on 0472 545 584 or email projects@commongoalconsulting.com.au for more information.