The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022

Is it February already? The year is already moving at a rapid pace and we are keen to ensure we are continuing to support you in achieving your business goals for 2023. Whether it’s keeping you up to date on the latest legislation changes; helping you to better understand your people and how they communicate and work together; or just making sure you are equipped to minimise the risks and navigate the challenges associated with managing people – we’ve got your back!

Flexible Work Arrangements

We know that by allowing employees to have a better work-life balance, we are supporting them to become happier and more fulfilled in their personal lives, as well as being happier at work. An increase in employee engagement and morale means more productive employees; improved health and wellbeing and reduced stress and burnout rates.

At HR Maximised we also know that when we recruit for jobs that include flexible work arrangements, our response rate is significantly higher than jobs with that don’t include these benefits . Employers need to give Flexible Work Arrangements serious consideration if they want to be competitive in the current market – both in enticing and retaining high quality staff. But what does this mean for employers?

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 amends the Fair Work Act 2009 to strengthen the right to request flexible working arrangements to assist employees to negotiate workplace arrangements that suit both them and their employer.

Who can request a FWA?

An employee (if they have completed 12 months of continuous service) can request a change to their working arrangements if the employee is:

• a parent, or has responsibility for the care, of a child who is of school age or younger;

• the employee is a carer (as defined by the Carer Recognition Act 2010);

• the employee has a disability;

• the employee is 55 or over;

• the employee is experiencing violence from a member of the employee’s family;

• the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family. For casual employees:

• the employee is a regular casual employee who has been employed on that basis for a sequence of periods of employment during a period of at least 12 months; and

• the employee has a reasonable expectation of continuing employment.

Following recent amendments, from 6 June 2023, in addition to the above, more employees will be able to request flexible working arrangements and the right to request flexible working arrangements will also apply to:

• employees, or a member of their immediate family or household, experiencing family and domestic violence; and

• employees who are pregnant.

Can an employer refuse a request?

Before they can refuse a request from an employee for a flexible working arrangement, employers will have to:

• discuss the request with the employee;

• make a genuine effort to find alternative arrangements to accommodate the employee’s circumstances;

• consider the consequences of refusal for the employee; and

• provide a written response that includes:

• an explanation of the reasonable business grounds for refusing the request and how these grounds apply to the request

• other changes the employer is willing to make that would accommodate the employee’s circumstances or that says there aren’t any changes

• information about referring a dispute to the Fair Work Commission (the Commission).

If an employer and employee have discussed the request and agreed to make changes to the employee’s working arrangements, that differ to what the employee requested, the employer must confirm these changes in writing within 21 days of the request.

The Fair Work Commission will be able to hear and make orders if disputes about flexible working arrangement arise and the parties can’t resolve the dispute at the workplace level. For example, if an employer refuses a request or doesn’t respond to a request within 21 days. The FWC has the power to start court proceedings for alleged breaches of these provisions.