Effective from 6 June 2023, as part of the changes made through the Australian federal government’s “Secure Jobs, Better Pay” legislation, the Fair Work Act’s flexible working arrangement (FWA) provisions were amended to:
Expand the circumstances in which an employee may request an FWA
Increase an employer’s obligations when considering an employee’s request
Introduce dispute resolution provisions that empower the Fair Work Commission (FWC) to make orders where an employer refuses an employee’s request
Of all the changes, the introduction of a dispute resolution process is a particularly significant (and controversial) development, as an employee’s ability to request an FWA was specifically excluded from the Fair Work Act’s dispute resolution processes when the act was first introduced.
Many employers and business groups expressed concern at the time these changes were announced, fearing that they may be flooded with applications from employees hoping to have decisions refusing requests for FWAs overturned, including requests involving working from home. So, what is the state of play a year later? Has the FWC been inundated with applications? Is there a trend of employees successfully challenging employers’ decisions, or is the FWC supporting employers’ right to refuse an FWA request on reasonable business grounds? A review of some of the FWC’s decisions over the last 12 months paints an interesting picture.
