The Secure Jobs, Better Pay Act 2022 (Act) has updated the laws governing requests for flexible working arrangements and introduces new provisions that enable the Fair Work Commission to settle disputes related to such requests.
The changes will be implemented on 6 June 2023, and employers must comply from that date onwards. In summary, the changes require that employers, before refusing a request, must meet with employees to discuss the requested flexible work arrangements and consider alternative working arrangements with them.
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What is changing under the Secure Jobs, Better Pay Act 2022?
The Act enhances the existing rights to request flexible work arrangements as outlined in section 65(1A) of the Fair Work Act 2009 (Cth) by broadening the situations in which an employee can seek flexible arrangements. This now includes cases where an employee, or someone from their immediate family or household, encounters “family and domestic violence”, as outlined in section 106B(2) of the Act.
Additionally, the Act incorporates a new section, 65A, mandating that an employer who receives a request for flexible work arrangements must:
- meet with the employee to discuss their request for flexible work; and
- if the employer plans to decline the flexible work request, either reach a mutual agreement on alternative changes to the employee’s working arrangements and record the agreed-upon changes in the employer’s written response; or
- should the employer still intend to refuse the request, specify the reasonable business grounds for the refusal and address the following:
- possible adjustments to the employee’s working conditions that could accommodate (to a certain extent) the employee’s situation and that the employer is willing to make; or
- that the employer is unable to implement such adjustments to accommodate the employee’s circumstances.
The Act introduces a dispute resolution mechanism for situations where an employer has:
- denied a flexible work request; or
- failed to provide a written response to a flexible request within 21 days; and
- the parties cannot resolve the dispute through discussions at the workplace level.
Conciliation should be the first point of call to resolve a dispute in cases involving flexible working arrangement disputes, unless there are “exceptional circumstances”. Conciliation is a process led by a conciliator appoint by the Fair Work Commission, where the parties negotiate informally with a view to finding common ground. In any event, particularly following a failed conciliation, the Commission has the authority to “address a dispute as it deems suitable” or refer it to arbitration where conciliation is unsuccessful or “urgency is required”.
Implications for Employers and Next Steps
Employers should make sure that they are ready to comply by the date when these changes will become effective, on 6 June 2023. As a first step, employers should update their policies. For a flexible working policy that is up-to-date with these changes, see Lawpath’s Flexible Working Policy document.
However, it is not enough for employers to comply on paper. They must also practically implement the workplace changes. Specifically, employers should ensure they comply by:
- updating their approach to assessing and responding to employees’ flexible work requests to incorporate the requirements to:
- meet with the employee and discuss their request; and
- inform the employee of any changes to working arrangements the employer is willing to consider to accommodate their situation.
- assessing any barriers to their ability to provide flexible working arrangements to employees (considering the nature of the business) and the potential evidence needed to demonstrate these barriers.
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