September 30, 2023

The Safe Jobs, Higher Pay Act 2022 (Act) has up to date the legal guidelines governing requests for versatile working preparations and introduces new provisions that allow the Honest Work Fee to settle disputes associated to such requests.

The adjustments might be applied on 6 June 2023, and employers should comply from that date onwards. In abstract, the adjustments require that employers, earlier than refusing a request, should meet with staff to debate the requested versatile work preparations and contemplate various working preparations with them. 

What’s altering below the Safe Jobs, Higher Pay Act 2022? 

The Act enhances the prevailing rights to request versatile work preparations as outlined in part 65(1A) of the Honest Work Act 2009 (Cth) by broadening the conditions through which an worker can search versatile preparations. This now consists of circumstances the place an worker, or somebody from their quick household or family, encounters “household and home violence”, as outlined in part 106B(2) of the Act.

Moreover, the Act incorporates a brand new part, 65A, mandating that an employer who receives a request for versatile work preparations should:

  • meet with the worker to debate their request for versatile work; and
  • if the employer plans to say no the versatile work request, both attain a mutual settlement on various adjustments to the worker’s working preparations and document the agreed-upon adjustments within the employer’s written response; or
  • ought to the employer nonetheless intend to refuse the request, specify the affordable enterprise grounds for the refusal and deal with the next:
    • attainable changes to the worker’s working situations that might accommodate (to a sure extent) the worker’s scenario and that the employer is prepared to make; or
    • that the employer is unable to implement such changes to accommodate the worker’s circumstances.

The Act introduces a dispute decision mechanism for conditions the place an employer has:

  • denied a versatile work request; or
  • failed to offer a written response to a versatile request inside 21 days; and
  • the events can not resolve the dispute by means of discussions on the office stage.

Conciliation needs to be the primary level of name to resolve a dispute in circumstances involving versatile working association disputes, except there are “distinctive circumstances”. Conciliation is a course of led by a conciliator appoint by the Honest Work Fee, the place the events negotiate informally with a view to discovering widespread floor. In any occasion, significantly following a failed conciliation, the Fee has the authority to “deal with a dispute because it deems appropriate” or refer it to arbitration the place conciliation is unsuccessful or “urgency is required”.

Implications for Employers and Subsequent Steps 

Employers ought to be sure that they’re able to comply by the date when these adjustments will turn into efficient, on 6 June 2023. As a primary step, employers ought to replace their insurance policies. For a versatile working coverage that’s up-to-date with these adjustments, see Lawpath’s Versatile Working Coverage doc.

Nonetheless, it isn’t sufficient for employers to conform on paper. They need to additionally virtually implement the office adjustments. Particularly, employers ought to guarantee they comply by:

  • updating their method to assessing and responding to staff’ versatile work requests to include the necessities to:
    • meet with the worker and talk about their request; and
    • inform the worker of any adjustments to working preparations the employer is prepared to think about to accommodate their scenario.
  • assessing any obstacles to their capability to offer versatile working preparations to staff (contemplating the character of the enterprise) and the potential proof wanted to exhibit these obstacles.