By Charles Power

The Fair Work Commission has finalised the model term for requests for flexible working arrangements.  The model term will be inserted into all modern awards as part of the 4-yearly review of modern awards, which will take effect on 1 December 2018.

The term will apply when an employee has made a request for a change in working arrangements under the National Employment Standards (NES).

There is no obligation under the NES to deal with the requesting employee about the request.  However, the new model term will require the employer, before responding to the request to:

• discuss the request with the employee; and
• genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances, having regard to:
  • the needs of the employee arising from their circumstances;
  • the consequences for the employee if changes in working arrangements are not made; and
  • any reasonable business grounds for refusing the request.

The NES requires that if the employer refuses the request, the written response must include details of the reasons for the refusal.  The Award model term goes further and requires that the reasons for refusal include:

• the business ground or other grounds relied upon by the employer for the refusal;
• how the ground or grounds apply;
• if the employer and employee could not agree on a change in working arrangements, whether or not there are any changes in working arrangements that the employer can offer the employee so as to better accommodate the employee’s circumstances; and
• if the employer can offer the employee such changes in working arrangements, details of those changes in working arrangements.

Under the Award model term, if the employer and the employee reached an agreement on a change in working arrangements that differs from that initially requested by the employee, the employer must provide the employee with a written response to their request setting out the agreed change(s) in working arrangements.

Given the NES requires the employer to give the requesting employee a written response to the request within 21 days of receiving the request, employers will need to develop procedures to ensure these discussions are convened within the first 10 days of receipt and that compliant notices to employees and documentation of flexible work agreements are developed.