MODERN AWARDS – 4 yearly review – ss.65, 134, 156 Fair Work Act 2009 – Full Bench – as part of the 4 yearly review the ACTU sought the variation of all modern awards to include an entitlement (i.e. an enforceable right) to part-time work or reduced hours for employees with parenting or caring responsibilities – it was submitted that there is a ‘gap’ in the safety net regarding flexible working arrangements because the ‘right to request’ in s.65 of the FW Act does not provide employees with an enforceable right – an employer’s decision to refuse a s.65 request is not subject to review or appeal – employer parties opposed the Claim and contended that s.65 provides a suitable framework for dealing with requests for flexible working arrangements – in a decision published on 26 March 2018 [[2018] FWCFB 1692] a differently constituted Full Bench rejected the Claim – the Full Bench went on to say that the rejection of the ACTU’s claim did not conclude the matter, noting (at [420]) that there was ‘a significant unmet employee need for flexible working arrangements’, and expressing (at [417]) the provisional view that modern awards should be varied to incorporate a model term to facilitate flexible working arrangements – the Full Bench proposed a provisional model term – interested parties were invited to comment – providing employees with access to flexible working arrangements can provide benefits to both employees and employers – Full Bench propose to insert a model term in all modern awards – Full Bench have taken into account the considerations in ss.134(1)(a) to (h) and held provisional view that the variation of modern awards to include the model term is necessary to ensure that such awards achieve the modern awards objective – provisional view that all modern awards should be varied to insert the model term – decision takes a cautious regulatory response to addressing the significant unmet employee need for flexible working arrangements – propose to review the model term in June 2021 – draft determinations giving effect to provisional view will be published in the coming weeks – interested parties will have 14 days from the date of publication of the draft determinations to comment. Family Friendly Working Arrangements
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