“Impossible to run a business”: Fair Work Commission to force employers to justify flexible work decisions

flexible work

Australian employers will soon have to provide reasoning for denying any worker requests for flexible work arrangements under changes to modern awards to be implemented following a decision by the Fair Work Commission.

The full bench of the Commission has decided to insert a clause into all modern awards to provide employees with the right to pursue legal action if employers fail to properly consider their requests for flexible work arrangements.

The decision, published yesterday, will also require employers to assess alternative arrangements if a flexible work request is denied.

The Commission published its model for flexible work arrangements alongside its decision, but did not provide an exact date for the implementation of the changes.

The move comes after industry consultation since May over family friendly working arrangements, overseen by the Commission and designed to tackle what unions have argued is a lack of flexible arrangements in Australian workplaces.

The Commission found there’s evidence of “significant unmet employee need for flexible working arrangements”.

Employer Groups, including the Australian Industry Group, have previously argued changing modern awards would partially undermine section 65 of the Fair Work Act, which sets out flexible work arrangements for those with parental or other caring responsibilities.

“Impossible to run a business”

Council of Small Business Organisations Australia (COSBOA) chief executive Peter Strong is critical of the Commission’s decision, arguing it will stifle the ability of employers to hire staff.

“How do you run a business if the hours of work are decided not by the customer but by the worker?” he tells SmartCompany.

“If we have to justify a business decision to a third party it is no longer our business.”

Strong says while the changes might be fine for larger companies that could devote resources to justifying rostering matters, small businesses would be left out in the cold.

“[Small businesses] don’t have HR departments that can do all this work,” he argues.

“If this goes to what they want to do, it becomes impossible to run a business.”

Employers must engage with employees on flexible work requests under the new rules and “genuinely try to reach an agreement on a change in working arrangements”, the Commission said in its decision.

This dialogue must reference the needs of an employee’s individual circumstances, the consequences for the employee if changes are not made and any “reasonable business grounds” for refusing a request.

If an employer does refuse a flexible work request, details must be provided in writing for the refusal, including the business grounds and and suggestions for alternative arrangements that could be made.

Australian Council of Trade Unions secretary Sally McManus has welcomed the ruling, saying it is a “step in the right direction”.

“People should be able to advance their careers and care for their families, and if employers are unwilling to consider reasonable requests for altered hours to accommodate a caring responsibility then workers should be able to challenge that decision,” she said in a statement.

NOW READ: Fair Work Commission report by Bruce Billson recommends overhaul and ‘triage’ system for SME unfair dismissals

NOW READ: Controversial Fair Work Commission decision on sick leave could lead to grave consequences for small business


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3 years ago

This country is being run by idiots. I was told by a manufacturer if he re-located to Bavaria his labour cost would go down 30%. Not Asia, but Germany. Our wages are so high here and our productivity is not good enough.

All the people in this country should read Ayn Rand’s Atlas Shrugged.

Australia the 20th century motor company.

The SME’s are here to run the company with all the stress for the social benefit of the workers who you struggle with to get the job done, try and make quality and then they ask for a motza, when they are not productive.

Let the place crash. Its the only way it will get corrected.

This country is so stupid its incredible.

We have been given so much and wasted the opportunity, thats how history will judge us. When its all owned by others, well it was our own fault letting garbage like from the fairwork commission.

If I as an employer had all my back holidays, long service and time in lieu for overtime and lost parts of weekends I would come back in 7+ years from now.

Stop screwing the people who take all the risks and run SME”s.

3 years ago

The SME employers will work longer hours to make up for this garbage, get tired, sick, have no real sick leave.

Plus have to ignore their families and have no flexibility. Screw the families of SME’s

Plus have a far higher chance of divorce.

Its time SME’s really band together and get very, very, very political.

You have been asked to give up your human right to run a business.

Storewall Australia
3 years ago

Employers who want to attract and keep good employees will try and find agreeable working arrangements anyway. There are always exceptions at both ends and that is what leads to these laws being drafted in the first place.

I have worked for an employer who refused to have staff meetings during work hours because it wasted company time. So we had them after work. This business had a $20m turnover. There was no flexibility.

Patrick Hart
Patrick Hart
3 years ago

quite literally the system is being coursed in favour towards a large “corporate” style business …… they are easily managed into Fair Works Union model for the membership fees attributable …… the small business sector in this country is being forced out the door , us included after 22 yrs , the govt and ato only favour those who are ripping them off

3 years ago

Had an Aussie friend move his IT business from QLD to Philippines. Simply due to cost. Unions and other theoretical decision makers simply can’t see both sides of the equation.

So business owners take the risk but employees dictate the rules. In what universe does that make sense. Australia has been the lucky country for so long that many are now taking it for granted.

3 years ago
Reply to  R

You got it wrong.

We are not taking it for granted now, we have been taking it for granted for 30+ years. Maybe even 70 years.

We have let so much garbage go on.

Look at taiwan no debt, in fact usd 400 billion surplus. We have over 1.4+ trillion debt ( private and government) and we have the minerals and agriculture.

We are stuffed in the head. At the next election the “takers’ who want the rest to pay will be seduced and we will all pay.

As I said time to get very political and wake up.

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