1st Dec 2022, 5:01 PM – Senate Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 - in Committee - Flexible workplaces

The majority voted against amendments introduced by Senator Barbara Pocock (Greens), which means they failed.

What were the amendments?

Senator Pocock explained that:

This amendment does two things. It widens the eligibility for the right to request flexibility, and it establishes a positive duty in favour of creating flexible workplace in Australia. It's 2022. Flexibility should be available to all employees, not just those with narrowly defined family responsibilities. It's only when seeking flexibility is something available to all that the stigma will be removed from asking for it, and we will see more men seeking flexibility and hopefully sharing domestic and care duties as a consequence. Wider eligibility for flexibility has been adopted in the UK, based on clear evidence about its value. Guess what? The sky has not fallen.

The second part of this amendment establishes a positive duty to create flexible workplaces. A modern workplace should create an environment that actively anticipates and responds to the needs of its workers and doesn't require individuals to have to push for it one by one individually, too often at risk of job security. So many employers already do this, talking to employees. This amendment will encourage others to create that positive flexible environment.

Amendment text

(1) Schedule 1, Divisions 1 and 2, page 130 (line 2) to page 131 (line 17), omit the Divisions, substitute:

Division 1 — Requests for flexible working arrangements

Fair Work Act 2009

446 Subsections 65(1), (1A) and (1B)

Repeal the subsections, substitute:

(1) If an employee would like to change his or her working arrangements, the employee may request the employer for a change in working arrangements.

Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.

(2) Schedule 1, item 459, page 132 (lines 4 and 5), omit "relating to circumstances that apply to the employee".

(3) Schedule 1, item 459, page 132 (lines 20 and 21), omit "to accommodate the circumstances mentioned in subsection (1)".

(4) Schedule 1, item 459, page 133 (lines 34 to 36), omit "that would accommodate, to any extent, the circumstances mentioned in subsection (1) and".

(5) Schedule 1, item 463, page 134 (lines 25 and 26), omit "relating to circumstances that apply to the employee".

(6) Schedule 1, item 463, page 136 (lines 25 and 26), omit "to accommodate, to any extent, the circumstances mentioned in paragraph 65B(1)(a)".

(7) Schedule 1, Part 11, page 138 (after line 9), at the end of the Part, add:

Division 5 — Positive duty for flexible working arrangements

Fair Work Act 2009

469AA After paragraph 336(1)(c)

Insert:

(ca) to protect the ability of persons to balance work and family responsibilities, and in doing so to promote gender equality;

469AB After section 351

Insert:

351A Positive duty to ensure flexible working arrangements are made available

Positive duty

(1) An employer must take reasonable and proportionate measures to ensure that, as far as possible, flexible working arrangements are made available to the employees of the employer to assist them to balance their work and family responsibilities.

Note: This section is a civil remedy provision (see Part 4-1).

(2) The following matters are to be taken into account in determining whether an employer complies with subsection (1):

(a) the size, nature and circumstances of the employer's business or undertaking;

(b) the employer's resources, whether financial or otherwise;

(c) the practicability and the cost of making flexible working arrangements available;

(d) whether the employer has complied with any guidelines prepared and published by the FWC under subsection (3);

(e) any other relevant matter.

FWC guidelines

(3) The FWC has the function to prepare, and to publish in such manner as the FWC considers appropriate, guidelines for complying with subsection (1).

(4) In performing its functions under subsection (3), the FWC must have regard to:

(a) the need for guidelines to be available in multiple languages; and

(b) the cultural diversity of Australian workplaces.

Positive duty additional to requirements und er Division 4 of Part 2-2

(5) To avoid doubt, the requirement in subsection (1) applies in addition to the requirements in Division 4 of Part 2-2 (requests for flexible working arrangements).

469AC Subsection 539(2) (cell at table item 11, column 1)

After "351(1)", insert:

351A(1)