In 2017, the ACTU claimed a new set of employee entitlements:
- an employee with parenting or caring responsibilities would have a right to access ‘Family Friendly Working Hours’ upon giving their employer ‘reasonable notice’; and
- an employee with parenting responsibilities who is on Family Friendly Working Hours would have a right to revert to their former working hours up until their child is school aged (or later by agreement); and
- an employee with caring responsibilities who is on Family Friendly Working Hours would have a right to revert to their former working hours for a period of two years from the date they commence their Family Friendly Working Hours (or later by agreement).
“Family Friendly Working Hours” was defined by the ACTU as
(a) on a part-time basis if the employee’s existing position is full-time; or
(b) on a reduced hours basis, if the employee’s existing position is part-time or casual
The ACTU believes that there is a ‘gap’ in the safety net regarding flexible working arrangements because the ‘right to request’ in s.65 of the Fair Work Act does not provide employees with an enforceable right. An employer’s decision to refuse a s.65 request is not subject to review or appeal.
The Fair Work Commission (FWC) has rejected this specific ACTU claim, agreeing with employer arguments that if granted, the employment relationship would be fundamentally altered as it would remove the ability of an employer to decide how to roster and allocate labour.
However, this is not the end of the matter. The FWC wants to incorporate a “facilitate flexible working arrangements” provision for parents and carers into awards. Employers will also be required to confer with the employee and where the request is refused, provide details in writing and to give details any changes in working arrangements that the employer can offer to the employee.
The FWC is to hear submissions from employers and unions on this proposed model clause for awards.