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2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Fair Work Amendment (Better Work/Life Balance) Bill 2018
EXPLANATORY MEMORANDUM
and
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Circulated by authority of
Adam Bandt MP
Fair Work Amendment (Better Work/Life Balance) Bill 2018
OUTLINE
The Fair Work Amendment (Better Work/Life Balance) Bill 2018 amends the Fair Work Act
2009 to provide enforceable rights to request flexible working arrangements to help
employees achieve a better work/life balance. The Bill extends the right to request flexible
working arrangements to all employees. In addition, the right to request would be
strengthened for those employees with caring responsibilities.
An employer may only refuse the request on reasonable business grounds and the Fair
Work Commission will be empowered to decide whether the employer refused on
reasonable grounds.
FINANCIAL IMPACT
The bill will have no financial impact.
NOTES ON CLAUSES
Clause 1: Short Title
1. This clause provides for the Act to be cited as the Fair Work Amendment (Better Work/Life
Balance) Act 2018
Clause 2: Commencement
2. This clause state the whole of this Act will commence on the day after it receives the Royal
Assent.
Clause 3: Schedules
3. This clause gives effect to the Schedules. It provides that legislation that is specified in a
Schedule to this Act is amended or repeal as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1 - Amendments of the Fair Work Act 2009
Item 1: Before paragraph 5(8)(a)
Inserts new subparagraph 5(8)(aa) to provide that flexible working arrangements orders can be
made for national system employees who are covered by the National Employment Standards and
makes reference to new Subdivision B of Division 4 of Part 2-2 which deals with flexible working
arrangements orders.
Item 2: Section 12
Inserts flexible working arrangements order into the Dictionary and includes a reference to the
new subsection 65B(1) which provides a definition.
Item 3: Subsection 22(4) (including the note)
Removes reference to Division 4 of Part 2-2 from meanings of service and continuous service.
New subsection 65 provides for employees to meet criteria with regards to continuous or
continuing employment with respect to requests for flexible working arrangements.
Item 4: Before paragraph 43(2)(a)
Inserts new subparagraph 43(2)(aa) to add flexible working arrangements orders to the other terms
and conditions of employment provided under the Fair Work Act 2009 and makes reference to new
Subdivision B of Division 4 of Part 2-2 which deals with flexible working arrangements orders.
Item 5: Subsection 44(2)
Updates reference to include reference to new subsections 65(5) and 65A(5) which deals with
employers refusing a request for flexible working arrangements only for serious countervailing
business reasons.
Item 6: Subsection 44(2) (notes 1 and 2)
Replaces notes 1 and 2 in subsection 44(2) to reflect new subsections 65(5) and 65A(5) which
deals with employers refusing a request for flexible working arrangements only for serious
countervailing business reasons.
.
Item 7: Paragraph 61(2)(b)
Amends subparagraph 61(2)(b) to replace repealed section 65(5) with new Subdivision A of
Division 4 which deals with requests for flexible working arrangements.
Item 8: Division 4 of Part 2-2
Replaces existing Division 4 of Part 2-2 with Division 4 - Flexible working arrangements, which
sets out the process for requesting flexible working arrangements and flexible working
arrangements orders.
Subdivision A - Requests for flexible working arrangements
New subsection 65 sets out the process for requesting flexible working arrangements for all
employees who meet certain criteria regarding their employment status.
Employees or organisations entitled to represent them may request the employer change the
employee's hours of work, pattern of work and location of work. A request can only be made if an
employee has at least 12 months of continuous service with the employer. A long term casual
employee can make a request if they have a reasonable expectation of continuing employment on
a regular and systematic basis.
The request must be in writing and set out details of the changes being requested and the reasons
for the changes. The employer must respond within 21 days stating whether they grant or refuse
the request. The employer may only refuse the request only for serious countervailing business
reasons and must include details of the reasons for the refusal in the written response.
New subsection 65A sets out the process for requesting flexible working arrangements for
employees with caring responsibilities who meet certain criteria regarding their employment status.
An employee who has responsibility for the care of another person or organisations entitled to
represent them may request the employer change the employee's hours of work, patterns of work
and location of work. A request can only be made if an employee has at least 12 months of
continuous service with the employer. A long term casual employee who has responsibility for the
care of another person can make a request if they have a reasonable expectation of continuing
employment on a regular and systematic basis.
A request must be in writing and set out details of the changes being requested and the reasons
for the changes. The employer must respond within 21 days stating whether they grant or refuse
the request. The employer may only refuse the request for serious countervailing business reasons
and must include details of the reasons for the refusal in the written response.
Subdivision B - Flexible working arrangements orders
New subsection 65B give the Fair Work Commission (FWC) the power to make flexible working
arrangements orders it considers appropriate to ensure compliance with section 65 and 65A and
defines who may apply for flexible working arrangements order. The FWC may make a flexible
working arrangements order only on application from an employee or employee organisation
whose request has been refused, or the Age Discrimination Commissioner, the Disability
Discrimination Commissioner or the Sex Discrimination Commissioner.
New subsection 65C allows the FWC to order changed working arrangements to be implemented
in stages as FWC thinks appropriate.
New subsection 65D provides that an employer must not contravene a term of a flexible working
arrangements order and make a breach subject to civil remedy provisions.
New subsection 65E sets out the relationship between working arrangements orders, modern
awards and enterprise agreements. A term of a modern award has no effect if it is less beneficial to
the employee than a term of a flexible working arrangements order. A term of a flexible working
arrangements order has no effect in relation to an employee to the extent that it is inconsistent with
a term of an enterprise agreement that applies to the employee.
The notes specifies that a modern award or enterprise agreement must not exclude the right to
make a request under Subdivision A or exclude any provision of Subdivision A with reference to
section 55.
Subdivision C - State and Territory laws that are not excluded
New subsection 66(1) provides that State or Territory laws that provide employee entitlements in
relation to flexible working arrangements are not excluded to the extent that they are more
beneficial to employees than the entitlements under this Division.
New subsection 66(2) provides that a law of a State or Territory has no effect in relation to an
employee to the extent that it provides an employee entitlement in relation to flexible working
arrangements that is inconsistent with a term of an enterprise agreement that applies to the
employee.
Item 9: Section 146 (note)
Repeals the note and updates reference to include reference to new subsections 65(5) and 65A(5)
which deals with employers refusing a request for flexible working arrangements only for serious
countervailing business reasons.
Item 10: Subsection 186(6) (notes 1 and 2)
Repeals the notes and updates reference to include reference to new subsections 65(5) and
65A(5) which deals with employers refusing a request for flexible working arrangements only for
serious countervailing business reasons.
Item 11: Paragraph 341(2)(i)
Inserts "Subdivision A" before "Division 4" to ensure requests for flexible working arrangements is a
process or proceedings under a workplace law or workplace instrument but flexible working
arrangements orders are not.
Item 12: Subsection 539(2) (after table item 5)
Inserts a new item 5AA into the table in subsection 539(2) which sets out the standing, jurisdiction
and maximum penalties that apply for a breach of a working arrangements order.
Standing is given to a person to whom a flexible working arrangements order applies or an
organisation entitled to represent a person to whom a flexible working arrangements order applies.
The Federal Court, the Federal Circuit Court or an eligible State or Territory court have jurisdiction.
Contravention of a flexible working arrangements order is a serious contravention and the
maximum penalty is 600 penalty units, or otherwise 60 penalty units. This is consistent with the
treatment of contraventions of national minimum wage orders and equal remuneration orders.
Item 13: Subsection 545(1) (note 4)
Repeals the note and updates reference to include reference to new subsections 65(5) and 65A(5)
which deals with employers refusing a request for flexible working arrangements only for serious
countervailing business reasons. .
Item 14: After paragraph 557(2)(c)
Inserts a new paragraph 557(2)(ca) that adds subsection 65D which deals with contravening a
working arrangements order as a civil remedy provision for the purposes of section 557. This
allows two or more contraventions of a flexible working arrangements order to constitute a single
contravention if the contraventions are committed by the same person; and the contraventions
arose out of a course of conduct by the person.
Item 15: After paragraph 557C(3)(c)
Inserts a new paragraph 557C(3)(ca) to provide that section 65D which deals with contraventions
of working arrangements orders is one of the civil remedy provisions listed in 557C(3). This is
consistent with national minimum wage orders and equal remuneration orders.
Item 16: After paragraph 558B(7)(c)
Inserts a new paragraph 558B(7)(ca) to provide that section 65D which deals with contraventions
of working arrangements orders is one of the civil remedy provisions listed in 557C(3). This is
consistent with national minimum wage orders and equal remuneration orders.
Item 17: Subparagraph 653(1)(c)(i)
Replaces reference to existing section 65(5) with new subsections 65(1) and 65A(1) requiring the
General Manager of the FWC to conduct research into the operation of the National Employment
Standards relating to requests for flexible working arrangements.
Item 18: Before paragraph 675(2)(a)
Inserts a new paragraph 675(2)(aa) which provides that a contravention of a flexible working
arrangements order is not a criminal offence.
Item 19: After paragraph 716(1)(d)
Inserts a new paragraph 716(1)(da) which gives Fair Work Inspectors powers to issue a
compliance notice if they reasonable believe that person have contravened flexible working
arrangements order.
Item 20: Subsection 739(2)
Replaces reference to existing section 65(5) with new subsections 65(5) and 65A(5) which deals
with employers refusing a request for flexible working arrangements only for serious countervailing
business reasons.
Item 21: Subsection 739(2) (note)
Replaces reference to existing section 65(5) with new subsections 65(5) and 65A(5) which deals
with employers refusing a request for flexible working arrangements on reasonable business
grounds.
Item 22: Subsection 740(2)
Replaces reference to existing section 65(5) with new subsections 65(5) and 65A(5) which deals
with employers refusing a request for flexible working arrangements only for serious countervailing
business reasons.
Item 23: Subsection 740(2) (note)
Replaces reference to existing section 65(5) with new subsections 65(5) and 65A(5) which deals
with employers refusing a request for flexible working arrangements on reasonable business
grounds.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Fair Work Amendment (Better Work/Life Balance) Bill 2018
This bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the bill
The Fair Work Amendment (Better Work/Life Balance) Bill 2018 amends the Fair Work Act
2009 to provide enforceable rights to request flexible working arrangements to help
employees achieve a better work/life balance. The Bill extends the right to request flexible
working arrangements to all employees. In addition, the right to request would be
strengthened for those employees with caring responsibilities.
An employer may only refuse the request on reasonable business grounds and the Fair
Work Commission will be empowered to decide whether the employer refused on
reasonable grounds.
Human rights implications
This bill does not engage any of the applicable rights or freedoms.
Conclusion
This bill is compatible with human rights because it does not raise any human rights
issues.
Adam Bandt MP