Extending the right to request flexible working arrangements

17.12 Under the NES, an employee who satisfies the eligibility requirements—who is a parent or otherwise has responsibility for a child who is under school age, or who is under 18 and has a disability—may request that his or her employer change the employee’s working arrangements to assist with the care of the child.^[13]

17.13 The ALRC recommends that as part of Phase 5 of the whole-of-government strategy for phased implementation of reforms contained in this Report, the Australian Government should consider amending s 65 of the Fair Work Act to provide that an employee who is experiencing family violence, or who is providing care or support to another person experiencing family violence, may request the employer for a change in working arrangements to assist the employee to deal with circumstances arising from the family violence.

17.14 The ALRC notes that while the Terms of Reference for this Inquiry require the ALRC to focus on family violence, there are potentially a number of circumstances and categories of people to whom the right to request flexible work arrangements could, and should, be extended.

Family violence and the right to request

17.15 In many workplaces, ‘employers and employees work through and deal with many challenging issues affecting workers in their professional and personal lives’,^[14] including the impact of family violence. Under existing arrangements, while employees are able to request flexible working arrangements outside the scope of the NES, they are not entitled to a response or reasons and, as a result, there may be a need for a ‘more secure entitlement to access flexible working arrangements’.^[15]

17.16 Some stakeholders strongly supported the inclusion of family violence as a ground upon which an employee should be entitled to request flexible working arrangements.^[16] Provision of flexible working arrangements is likely to ‘enhance the participation and job security’ of employees experiencing family violence, while allowing employees to deal with issues arising from family violence which may impact on their ability to attend work, or work safely and productively.^[17] Arrangements that may assist victims of family violence include: a change in shifts or working hours; changes to work contact details; and changes to work location—all of which are likely to contribute to the safety of the employee.

17.17 While it was acknowledged that ‘many employers already provide important support’ in a range of forms,^[18] amendment to the NES would avoid the need for victims of family violence to seek casual employment to achieve flexibility, or to rely solely on the ‘goodwill’ of their particular employer to access flexible working arrangements.^[19] This is particularly important for people experiencing family violence who are often casual employees with little power to negotiate such changes.^[20]

17.18 By way of comparison, some overseas jurisdictions have enacted legislation that entitles victims of family violence to reduce or reorganise their working hours, change workplaces and make other flexible working arrangements.^[21]

17.19 If the right to request provisions were amended, the ALRC suggests that s 65 of the Fair Work Act should provide that an employee who is experiencing family violence, or who is providing care or support to another person who is experiencing family violence, may request the employer for a change in working arrangements to assist the employee to deal with circumstances arising from the family violence.

17.20 The provision should be broadly formulated to cover care or support provided to a member of the employee’s immediate family or household, including children or dependants who may have been affected by family violence,^[22] as well as in a range of ‘other important relationships such as Indigenous kinship … neighbours or close friends who may well be more likely to be called upon to care or support a victim of family or domestic violence than a member of the family or household’.^[23]

17.21 The ALRC considers that the evaluation of the effectiveness of the current provision is necessary and each of the concerns identified by stakeholders outlined above should be considered in the course of any proposed amendment.^[24] While ACCI indicated that it would not support any changes to the Fair Work Act at this stage, it noted that ‘this is not to say that ACCI believes that all of the laws currently operate as intended and will not require amendment in the future’.^[25]

Potential limitations with the current provision

17.22 There are two aspects of the current provision that are likely to be particularly restrictive for victims of family violence—eligibility and the employer response period. However, there were also a number of other concerns expressed by many stakeholders in relation to the current structure and operation of s 65 of the Fair Work Act, including the procedural nature of the provision, the limited availability of enforcement mechanisms and the grounds for refusal.

Eligibility requirements

17.23 To be eligible to request flexible work arrangements, the employee must have 12 months continuous service or, for a casual employee, be a long-term casual employee with a reasonable expectation of continuing employment on a regular and systemic basis.^[26] The victims of family violence are predominantly women, and generally have a more disrupted work history,^[27] which may make it more difficult to satisfy eligibility requirements.^[28]

Response period

17.24 An employer must respond to any request for flexible working arrangements by an employee in writing within 21 days and, if refusing the request, must give reasons for doing so.^[29] The difficulty is that, due to the unpredictable nature of family violence, employees experiencing family violence may need a response sooner, and that such a response period may mean no change to working arrangements, or even reasons for refusal to allow a change, is available when it is most necessary.^[30] However, stakeholders emphasised that this must be balanced with the need to ensure employers have sufficient time to examine and determine appropriate alternative working arrangements.^[31]

Procedural nature of the provision

17.25 Concern has also been expressed that the provision is procedural rather than substantive. That is, it provides that an employee is entitled to request flexible working arrangements, receive a response and, if that request is refused, be provided with a written statement of reasons.^[32] The rationale for the inclusion of a procedural provision was that a similar provision in the UK had demonstrated that ‘simply encouraging employers and employees to discuss options for flexible working arrangements has been very successful in promoting arrangements that work for both employers and employees’.^[33] However, stakeholders have emphasised that there are ‘limitations with only having a right to request and not an entrenched clear entitlement’.^[34]

Limited enforcement or appeal mechanisms

17.26 There are also limited enforcement or appeal mechanisms available where an employee considers a request has been unreasonably refused.^[35] Section 44 of the Fair Work Act provides that an order cannot be made under the civil remedies provisions in relation to contraventions of s 65(5). As a result, civil remedies for breaches of the flexible working arrangement NES do not apply if an employer refuses a request, other than on reasonable business grounds. In addition, s 739 of the Fair Work Act provides that FWA must not deal with a dispute about whether an employer had reasonable business grounds to decline a request for flexible working arrangements unless the clause is replicated in an enterprise agreement.^[36]

17.27 Stakeholders submitted that the ‘same rights of redress’ that apply to the other NES should be extended to this provision.^[37] The ACTU argued that denial of appeal rights to FWA, except where specifically provided for in an enterprise agreement, raised issues of justice, and stated that ‘it is wholly inappropriate that such a basic right to procedural fairness be left to the vagaries of the bargaining framework’.^[38]

Refusal on ‘reasonable business grounds’

17.28 Section 65(5) of the Fair Work Act provides that such a request may only be refused on ‘reasonable business grounds’.^[39] In light of the lack of legislative clarification of what constitutes reasonable business grounds, some stakeholders suggested that the provision should outline an ‘an employer’s obligations to have properly considered the request and reasonably endeavoured to accommodate the request’.^[40]