Employers must extend their flexibility in dealing with employee requests

DiocesanEducationEmployment RelationsHealthIndustrial adviceLegal adviceReligious Institutes and Retreats

May 22

Flexible work requests can pose a challenge for businesses; however, it also presents an opportunity to work with employees to develop mutually beneficial arrangements. On 6 June 2023 new obligations and requirements will be imposed on employers in dealing with requests for flexible working arrangements and/or unpaid parental leave extensions (Requests).

An employee’s right to request flexible working arrangements will also expanded to including situations where an employee, or a family member, is experiencing family or domestic violence from 6 June 2023.

Employers should immediately review their current practises for considering and responding to Requests, to ensure they comply with their new obligations and requirements under the amendments to the Fair Work Act (Act).

Although employees previously could make these Requests, from 6 June 2023 a more stringent procedure will be imposed upon employers in considering and responding to Requests including the following obligations:

To meet with the employee to discuss their Request.

If the employer intends to refuse the Request, must consider alternative changes which must be included in the employer's written response to the Request.

if the employer still intends to refuse the Request, the employer must outline the reasonable business grounds for refusal and address the following:
- changes that would accommodate (to any extent) the employee's circumstances which the employer would be willing to make; or
- that there are no such changes the employer could make to accommodate the employee's circumstances.

These changes introduce additional steps for employers, but also create an opportunity to sit down with employees and develop a solution that works for both parties.

The Fair Work Commission will have jurisdiction to hear and arbitrate disputes (and make binding orders) in circumstances where an employer:

refuses a Request for flexible working arrangements and or unpaid parental leave extensions; or
has not complied with the procedural requirements imposed by Act, including not providing a written response to a Request within 21 days; or
has been unable to resolve the dispute with the employee through discussion at the workplace level.

Employers can no longer simply refuse a request for flexible working arrangements or unpaid parental leave extension, and must consider taking the following immediate action:

review existing procedures for considering and responding to Requests:
taking into account the nature of the employers business, consider what limitations may affect their ability to agree to Requests and how these limitations can be substantiated.
review their employment contracts and job descriptions to ensure they contain sufficient details, including the essential requirements of the job, to provide a better understanding of what kinds of flexibility are feasible, and what kinds of requests will reasonably be refused.
Ensure they are fully aware of the obligations and responsibilities

Employers should also ensure that they are aware of their obligations and responsibilities beyond the summary contained in this short reminder.

Catholic Employment Relations is always available to advise and assist employers implement necessary changes to ensure compliance with the new obligations and changes.