December 2018 Work Health and Safety Update

Dec 19, 2018

Employee Requests for Flexible Working Arrangements and Part Day Holidays

By Chas Cini


A new model award term that requires employers to make a genuine attempt to reach agreement on requests for flexible work arrangements came into effect on 1st December 2018

Why the change?
This new requirement in Clause 26B comes as a result of a four-yearly review by the Fair Work Commission into family-friendly work arrangements and is designed to supplement flexible work provisions in the Fair Work Act.

What to do when you receive a request?
Employers should acknowledge the request and advise that you will consider it. You can seek additional information from the employee if you require it.

So, what does this mean for employees?

  1. The new clause will enable employees to request new flexible working conditions.
  2. The new clause does not give employees an unfettered right to more flexible working arrangements.

And for Employers?

  1. An employer may only refuse a request for a change in working arrangements on “reasonable business grounds”.
  2. If an employer cannot grant the request, the employer must consider any alternative arrangements that can be made (See “Another Award Flexibility Alternative” below).
  3. The employer should advise the employee that they will respond within 21 days of receiving the written request.
  4. Employers must include details of the reasons for any refusal, including the business grounds. Employers should also include whether they can offer alternative working arrangements as a compromise and if so, what that compromise might be.

What happens if agreement is not reached?

  1. The clause allows employees to dispute whether employers have correctly followed the process.
  2. If agreement is not reached the Award provisions (Clause 9) for Dispute Resolution can be used to determine whether the employer has met their obligations to discuss working arrangements with the employee, and whether the employer responded appropriately.
  3. The Commission is unable to arbitrate disputes about whether employers have reasonable business grounds for refusing requests unless specified in agreements or employment contracts.

Another Award Flexibility Alternative
Schedule G in the award allows on the completion of the Form (or similar document) for employees and employers to agree to “bank” overtime as paid leave in lieu of payment. This leave is in addition to ordinary leave entitlements and can be taken at a time agreed by bother employer and employee. This also applies to casual workers.
 
However, if the “banked” overtime in lieu of payment is not taken as time off within six months or before employment ends, the employee must be paid the full overtime rate.
 
Part-day Public Holidays (Schedule D Award)
This is a new Federal Award provision which may only marginally affect the industry.

The Award recognises proclaimed public holidays in each state and territory.

In South Australia, Christmas Eve (24th December) and New Year’s Eve (31st December) are proclaimed public holidays between 7.00 pm and midnight.

Whilst this provision is unlikely to be exercised on most farms, the key aspects are underlined for reference.

Employees’ Rights

  • All employees will have the right to refuse to work on the part-day public holiday if the request to work is not reasonable or the refusal is reasonable as provided for in the NES.
  • Where a part-time or full-time employee is usually rostered to work ordinary hours between 7.00 pm and midnight but as a result of exercising their right under the NES does not work, they will be paid their ordinary rate of pay for such hours not worked.
  • Where a part-time or full-time employee is usually rostered to work ordinary hours between 7.00 pm and midnight but as a result of being on annual leave does not work, they will be taken not to be on annual leave between those hours of 7.00 pm and midnight that they would have usually been rostered to work and will be paid their ordinary rate of pay for such hours.
  • Where a part-time or full-time employee is usually rostered to work ordinary hours between 7.00 pm and midnight, but as a result of having a rostered day off (RDO) provided under this award, does not work, the employee will be taken to be on a public holiday for such hours and paid their ordinary rate of pay for those hours.
  • Non-salaried employees who work any hours between 7.00 pm and midnight they will be entitled to the appropriate public holiday penalty rate (if any) in this award for those hours worked.
  • Where an employee is paid an annualised salary under the provisions of this award and is entitled under this award to time off in lieu or additional annual leave for work on a public holiday, they will be entitled to time off in lieu or pro-rata annual leave equivalent to the time worked between 7.00 pm and midnight.
  • An employee not rostered to work between 7.00 pm and midnight, other than an employee who has exercised their right in accordance with clause D.1(a), will not be entitled to another day off, another day’s pay or another day of annual leave as a result of the part-day public holiday.

Where can I access a copy of the new provisions?
You can access the whole Award with this latest variation here.

Details: For more information, contact Chas Cini on 08 8331 2422 or info@mers.com.au

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