12 May CHANGES TO FLEXIBLE WORKING ARRANGEMENTS AND UNPAID PARENTAL LEAVE

The Fair Work Commission (“the Commission”) has outlined how it will handle disputes over requests for flexible working arrangements and extensions to unpaid parental leave once the relevant Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (“the Amendment Act”) amendments come into effect on 6 June 2023.   The Commission President Adam Hatcher released a Statement on 9 May 2023, which outlines the implementation of the amendments.

The Amendment Act amends the Fair Work Act 2009 (Cth) (“the FW Act”) to strengthen the right to request flexible working arrangements and the extension of unpaid parental leave.  Both requests are currently included in the National Employment Standards (“NES”), however, the FW Act currently fails to provide an avenue for employees to challenge the refusal of such requests on reasonable business grounds, unless the parties have agreed to this in an employment contract, enterprise agreement or other written agreement, or a public service determination authorises this.

The Amendment Act introduces two amendments to extend the same rights of enforcement and dispute resolution to requests for flexible working arrangements and an extension of unpaid parental leave that generally apply to other NES entitlements.  Firstly, civil remedy proceedings can be pursued where an employer contravenes new sections 65A or 76A, under section 44 of the FW Act.  Secondly, the Commission (or another authorised person) can deal with disputes about whether an employer had reasonable business grounds to refuse a request for flexible working arrangements or an extension of unpaid parental leave, pursuant to a dispute resolution term in a modern award, enterprise agreement, employment contract, or public service determination.  However, the Commission can only arbitrate a dispute about the reasonableness of the refusal of a request if the parties to the dispute have agreed to this.

The Commission can also deal with disputes about requests for flexible working arrangements and extensions of unpaid parental leave under the new sections 65B, 65C, 76B, and 76C of the FW Act, and can do so as it considers appropriate, including by arbitration in certain circumstances.  The Commission has developed two new forms to facilitate this process, which will be made available on the Commission’s website.  These forms are:

• Form F10C – Application for a dispute about flexible working arrangements, which is to be used to request that the Commission deal with a dispute about a refusal of a request for flexible working arrangements under s 65B(4); and

• Form F10B – Application for a dispute about extension of a period of unpaid parental leave, which is be used to request that the Commission deal with a dispute about a refusal of a request to extend unpaid parental leave under s 76B(3).

Commission President Hatcher also states that whilst most modern awards already include model terms relating to flexible working arrangements and dispute resolution, these may need to be reviewed in light of these changes.  A Full Bench will consider the interaction between these model award terms and the new NES provisions concerning the resolution of disputes about refusals of requests for flexible working arrangements or extensions of unpaid parental leave and will issue a statement in due course.

HR Law remains committed to keeping you updated on these changes and their practical implementation. 

To read the Statement, click here.