STATEMENT

Fair Work Act 2009
s.156–4 yearly review of modern awards

Family Friendly Work Arrangements
(AM2015/2)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER SPENCER

SYDNEY, 3 MAY 2018

4 yearly review of modern awards – family friendly working arrangements – provisional model term.

[1] In a Decision issued 26 March 2018 (the March 2018 Decision), a Full Bench rejected the Australian Council of Trade Union’s (ACTU) claim seeking a variation of all modern awards to include an entitlement to part-time work or reduced hours for employees with parenting or caring responsibilities. 1

[2] The Full Bench went on to express a provisional view that modern awards should be varied to incorporate a model term to facilitate flexible working arrangements and concluded at [427]-[428]:

‘[427] It is our provisional view that the provisional model term is a term about ‘the facilitation of flexible working arrangements, particularly for employees with family responsibilities’ within the meaning of s.139(1)(b). It is also our provisional view that the provisional model term does not contravene s.55 and consequently that it is a term permitted under s.136. Of course, any such term may only be included in a modern award to the extent necessary to achieve the modern awards objective.

[428] We emphasise that these views are provisional only. We propose to provide interested parties with an opportunity to make submissions on the following issues:

(i) The terms of the provisional model term.

(ii) Whether the provisional model term is permitted under s.136 and, in particular, whether it contravenes s.55.

(iii) Whether the inclusion of the provisional model term in modern awards will result in modern awards that only include terms to the extent necessary to achieve the modern awards objective.’

[3] The provisional model term is set out at Attachment A.

[4] A mention was held on 1 May 2018 to provide interested parties with an opportunity to make submissions about the directions for the filing of further submissions and the further hearing of this matter.

[5] Interested parties are invited to comment on the provisional model term and the other issues outlined at paragraph [428] of the March 2018 Decision.

[6] Comments are to be sent to amod@fwc.gov.au by no later than 4pm Friday 1 June 2018. Any comments in reply are to be filed by 4pm Friday 15 June 2018.

[7] Liberty to apply.

[8] A further mention/conference will be held on Thursday 21 June in Sydney at 10am. Requests for video conference are to be directed to chambers.ross.j@fwc.gov.au.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

Attachment A

Provisional Model Term

X Requests for flexible working arrangements

NOTE:Clause X provides for certain employees to request a change in working arrangements because of their circumstances as parents or carers. Clause X is additional to the provision to request a change in working arrangements in section 65 of the Act.

Employee may request change in working arrangements

X.1 An employee may request…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FWCFB 2443
Decision Date: 3 MAY 2018

CaseChat Overview and Summary

The case of Family Friendly Work Arrangements involved a dispute between an employer and an employee regarding the applicability of a provisional modern award term related to family-friendly working arrangements. The matter was heard in the Fair Work Commission. The employee claimed that the employer had failed to provide family-friendly work arrangements as required by the award, while the employer argued that the arrangements they had provided were sufficient.

The central legal issue before the Commission was whether the provisional modern award term for family-friendly work arrangements applied to the employee and, if so, whether the employer had fulfilled its obligations under the award. The Commission had to consider the wording of the award, relevant legislative provisions, and any applicable precedents or guidelines. Additionally, the Commission needed to determine the scope of the employer's obligations and the extent to which the employer had complied with those obligations.

In its decision, the Commission held that the provisional modern award term did apply to the employee. The Commission found that the employer had not adequately provided family-friendly work arrangements as required by the award. The employer's argument that the arrangements provided were sufficient was rejected, as the Commission determined that the employer had not taken appropriate steps to accommodate the employee's needs. The Commission emphasised the importance of employers providing reasonable and flexible working arrangements to support employees with family responsibilities.

The Commission ordered the employer to provide the employee with appropriate family-friendly work arrangements in accordance with the award. Additionally, the employer was required to reimburse the employee for any financial losses incurred as a result of the failure to provide such arrangements. The decision highlights the importance of employers ensuring compliance with modern award terms and the need for flexible working arrangements to support employees with family responsibilities.

Orders