Recap: Summary of changes to the Fair Works Act commencing 6 June 2023

On 6 June 2023 a number of additions and amendments to the Fair Works Act 2009 will take effect. Employers should be conscious of these changes and be equipped to properly respond to their effect and any enquiries by employees. These are:

1. Flexible Working Arrangements

Making the request:

The circumstances for which employees can request flexible work arrangements has been expanded, these include:

1. the employee is pregnant, or
2. the employee is experiencing ‘family or domestic violence’ or the employee provides care or support to a member of their immediate family or household who is experiencing ‘family or domestic violence’.

Employers responsibility:

Employers will be required to meaningfully consider a request for flexible working arrangements and provide a written response to the employee within 21 days. The employer must discuss the request with the employee and genuinely attempt to reach an agreement that accommodates the employee’s circumstances. In the event that the request is refused, the employer must provide reasons which sets out the ‘reasonable business grounds’ for the refusal.

Dispute resolution:

If the employee is not satisfied with the employers response, the employee can refer the matter to the Fair Work Commission (FWC) for resolution.

2. Extension of unpaid parental leave

An employee is entitled to request an extension of unpaid parental leave for a further period of up to 12 months.

Making the request:

The employee is entitled to request a further period of unpaid parental leave for up to 12 months immediately following the end of the initial leave period. The request must be in writing and made at least 4 weeks before the end of the initial leave period.

Employers responsibility:

The employer is required to provide a written response to a request for further unpaid parental leave within 21 days. The employer can either grant the request, agree to a different period than requested following discussions with the employee, or refuse the request. In the event that the employer refuses the request for further unpaid parental leave the employer is required to set out the ‘reasonable business grounds’ for the refusal.

Dispute resolution:

If an employee disputes the employer’s refusal of the request, the parties must first attempt to resolve the dispute at workplace level, through discussions. If workplace discussions fail the employee may refer the dispute to the FWC for resolution.

3. Changes to Bargaining and Agreements

Multi-enterprise Bargaining Agreements

From 6 June 2023, there will be 3 types of multi-enterprise agreements:

• Supported bargaining agreements
• Single interest employer agreements
• Cooperative workplaces agreements

There are exclusions to multi-enterprise agreements such as the construction carve-out.

Changes to ‘genuine agreement’ requirement

If the notification time of your agreement is after 6 June 2023 an employer is required to adhere to a Statement of Principles published by the FWC. The FWC must take into account the Statement of Principles when determining whether the employees have genuinely agreed to a proposed enterprise agreement. The Statement of Principles can be found here.

Changes to the better off overall test (BOOT)

If your agreement is made after 6 June 2023 the FWC will be allowed to:

1. amend an agreement after it’s lodged, if the Commission is of the view that it doesn’t pass the BOOT, or
2. reconsider an agreement after it has been approved, if relevant circumstances were not properly considered or if circumstances have changed.

In applying the BOOT the FWC is now required to make a global assessment of whether each employee will be better off with regard to:

1. the terms of the agreement which would be more beneficial to the employee than the relevant modern award; and
2. the terms of the agreement which would be less beneficial to the employee than the relevant modern award.

If you have any questions in relation to the Fair Work Act, please contact our Workplace Relations and Legal Team on (02) 6175 5900.