The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Secure Jobs, Better Pay Act) introduced several reforms regarding requests for flexible working arrangements and requests for extensions of unpaid parental leave that will come into effect from 6 June 2023.
Effective 6 June 2023:
The Secure Jobs, Better Pay Act introduces a new dispute resolution mechanism for employees to challenge an employer’s refusal of, or failure to respond to, a flexible working request, marking a significant shift from the previous provisions regarding these types of requests. Previously, decisions by employers to refuse requests on reasonable business grounds were generally not reviewable, subject to the terms of an applicable award or enterprise agreement.
Not all employees are entitled to make a request for a flexible working arrangement. Employees are only entitled to make a request if they have completed at least
12 months of continuous service with their employer and where they require flexibility because of a specified attribute, including that they:
From 6 June 2023:
Casual employees are able to make a request if they have one of the specified attributes and they have been employed on a regular and systematic basis for at least 12 months and have a reasonable expectation of continuing employment on that basis.
Previously, employers were required to respond to requests for flexible working arrangements in writing within 21 days of the request and could only refuse a request on reasonable business grounds.
Under the reforms, requests may still only be refused on reasonable business grounds and the meaning of that phrase has not changed. Reasonable business grounds include the following:
From 6 June 2023, employers must still respond to the request in writing within 21 days. However, within that 21-day period, the employer must also discuss the request with the employee and genuinely try to reach an agreement with the employee about making agreed changes to the employee’s working arrangements, which may be different to the changes requested where a workable compromise may be available.
If, following these discussions, the employer and employee have not reached an agreement and the employer wishes to refuse the request, the employer must have regard to the consequences of the refusal on the employee and, still within the 21-day period, provide the employee with a response in writing that:
From 6 June 2023, employees will be able to apply to the FWC in circumstances where:
The FWC will be required to resolve a dispute about a request for a flexible working arrangement through a means other than arbitration (usually conciliation or mediation) in the first instance, unless exceptional circumstances apply.
If exceptional circumstances apply or the dispute does not resolve through conciliation or mediation, the FWC will be empowered to arbitrate the dispute and may make orders including orders that the employer grants the request or makes other specified changes to the employee’s working arrangements.
Failure to comply with an order of the FWC in relation to a flexible working arrangement is a civil remedy provision, and can result in maximum penalties of $16,500 per contravention for an individual and $82,500 per contravention for companies.
The Secure Jobs, Better Pay Act introduces similar changes in relation to requests for an extension of unpaid parental leave.
Eligible employees are entitled to take up to 12 months’ unpaid parental leave and can also request an extension of unpaid parental for a period of up to another 12 months (24 months total). Like with flexible working requests, previously, employers were required to respond to requests for an extension of unpaid parental leave within 21 days, however, an employer’s decision to refuse a request was generally not reviewable.
Under the reforms, an employer can still only refuse an employee’s request to extend their unpaid parental leave on reasonable business grounds and employers are required to respond to requests within 21 days. However, in those 21 days, employers will be required to discuss the request with the employee and genuinely try to reach an agreement about the extension of unpaid parental leave.
If following their discussions, the employer and employee have not reached an agreement and the employer wishes to refuse the request, the employer must have regard to the consequences of the refusal on the employee and, still within the 21-day period, provide the employee with a response in writing that:
From 6 June 2023, employees will be able to apply to the FWC in circumstances where:
As with requests for flexible working arrangements, the FWC will be required to resolve a dispute about a request to extend unpaid parental leave through a means other than arbitration (usually conciliation or mediation) in the first instance, unless exceptional circumstances apply.
If exceptional circumstances apply or the dispute does not resolve through conciliation or mediation, the FWC will be empowered to arbitrate the dispute and may make orders including orders that the employer grants the request or agrees to an extension of unpaid parental leave for up to 12 months.
Failure to comply with an order of the FWC in relation to a flexible working arrangement is a civil remedy provision, and can result in maximum penalties of $16,500 per contravention for an individual and $82,500 per contravention for companies.
Some measures that will assist employers to prepare for the changes on 6 June 2023 include:
If you have any questions or would like more specific information about the changes will affect your business, please call 1800 867 113, or to organise a confidential discussion at a time that suits you, please click here.
Stephen Schoninger is a Partner and leads the employment and workplace law practice at Avant Law, based in Sydney. Stephen has 20 years’ experience practising exclusively in employment, industrial relations and discrimination laws. Stephen is called on for his ability to plainly advise on and pragmatically apply legal principles to manage and resolve complex issues arising in the workplace. Stephen advises employers and employees in the private and public sectors on all areas of workplace law and is an experienced litigator of work-related claims. Stephen also conducts workplace investigations and delivers workplace compliance training. He regularly presents seminars on topical employment and workplace law issues.
Savanna Russo is an Associate in the employment and workplace law practice at Avant Law, based in Sydney. Savanna has experience advising both employer and employee clients on all areas of employment law. She has particular experience advising small to medium businesses in a wide range of industries including allied health, banking and finance, professional services and construction. Savanna provides practical, solutions-focused advice and is known for her professional and empathetic approach.
Disclaimer: The information in this article does not constitute legal advice or other professional advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest, and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of this content. The information in this article is current to 2 June 2023. Liability limited by a scheme approved under Professional Standards Legislation. Legal practitioners employed by Avant Law Pty Limited are members of the scheme. © Avant Mutual Group Limited 2023
Liability limited by a scheme approved under Professional Standards Legislation. Legal practitioners employed by Avant Law Pty Limited are members of the scheme.