A casual focus on flexibility: the Fair Work Commission considers extending flexible work arrangements

By Jennifer Wyborn, Nicholas West-Foy

29 Mar 2018

With the Fair Work Commission looking at giving more casual employees the right to request a flexible work arrangement, employers who want to separate themselves from the pack should consider extending the eligibility for flexible work to more employees in their workplace now.

Most of us stopped paying attention to the four-yearly Modern Award review process that is currently being undertaken by the Fair Work Commission once the decision about penalty rates was made. As we saw this week though, with the landmark decision in relation to incorporating unpaid family and domestic violence (FDV) leave into the majority of Modern Awards, there are also other significant issues keeping Commission busy that deserve our attention.

One such issue is family friendly working arrangements. Last week, a Full Bench of the Commission handed down a decision that has the potential to increase the availability to request a flexible work arrangement to more casual employees than are currently eligible under the National Employment Standards (NES).

Casual, not inflexible

As part of the Modern Award review, the ACTU made an initial claim to create a new set of employee entitlements relating to flexible work. In particular, it proposed give employees with parenting or caring responsibilities the right to access "Family Friendly Working Hours" (defined as either part-time, or reduced hours depending on the employee's position) by giving their employer "reasonable notice". Employees with parenting responsibilities would also have the right to revert to their former working hours up until their child is school-aged, while those with caring responsibilities would have the right to revert for two years after commencing Family Friendly Working Hours.

In making its submission, the ACTU argued that the current flexible working regime, outlined at section 65 of the Fair Work Act 2009 (Cth) was inadequate and unfairly favoured employers, whose decision to refuse flexible work was not subject to review or appeal. It also contended that greater access to flexible work would increase the nature and quality of labour force participation.

Those against the change included the Australian Chamber of Commerce and Industry, who argued that the ACTU's proposal was unfair and unworkable, as provided an employee gave "reasonable notice" the employer was unable to refuse a request, even on legitimate operational grounds.

While conceding that some aspects of the current flexible work regime are soft, ultimately the Full Bench rejected the ACTU's suggestion, concluding that its proposal, if accepted would "confer on an employee a unilateral right to determining their hours, regardless of the operational considerations of the employer".

But wait, there's more!

Despite this conclusion, the Full Bench did acknowledge that the evidence makes it clear that family friendly working arrangements are an important method for increasing labour force participation (particularly for women) which has benefits to the Australian economy. In light of this, the Full Bench reached a provisional view that a model term to facilitate flexible working arrangements for parents and carers should be included in all Modern Awards.

The model term put forward by the Full Bench would, amongst other things, allow casual employees with at least six months' service, and who have a reasonable expectation of continued work, to access flexible working arrangements provided they have parental or carer's responsibilities. This is a significant expansion of the class of employees who are able to request flexible work arrangements, which were previously limited under the NES to long-term casual employees.

Getting ready for family friendly working arrangements

As of August 2017, casual employees made up approximately 25%, of Australia's workforce (just under 2.5 million people). With the continued Government focus on an "agile" workforce, combined with greater female participation, and strong growth in industries that have traditionally used casual workers, it would come as no surprise if these figures continued to rise.

Given this, employers must continue to think about how they intend to manage their workforce into the future, paying particular attention to flexible working arrangements for parents and their casual employees. The release of the Full Bench's model term in relation to flexible work arrangements for parents and carers makes this a good place to start.

The Commission has scheduled further hearings on the model term later in the year and it is a good bet that, similarly to the recently released Family and Domestic Violence Leave model term, change is on the way in the flexible work space, so all employers with employees covered by Modern Awards should:

  • start thinking about and assessing how they manage flexible work in their workplaces, including reviewing policies and procedures;
  • consider how the model term may affect the structure of their workplace and start planning on the assumption that the entitlement to flexible work will expand to more employees; and
  • consider the model term proposed by the Commission and, if appropriate, make a submission.

If you wish to separate yourselves from the pack, jump ahead of the Commission and consider extending the eligibility to flexible work to more employees in your workplace now.

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