Chapter 1 Fair Work Amendment (Better Work/Life Balance) Bill 2012
Referral and conduct of the inquiry
On 16 February 2012, the Fair Work Amendment (Better Work/Life Balance)
Bill 2012 (the Bill) was referred to the House of Representatives Standing Committee
on Education and Employment (the Committee) by the House of Representatives
The Bill was introduced in the House of Representatives on 13 February
2012 by the Member for Melbourne, who was subsequently appointed to the Committee
for the purposes of this inquiry. The Bill had received a first reading in the
House at the time of drafting this report. A copy of the Bill is provided at
The inquiry was advertised by media release and in The Australian
as well as inviting submissions directly from stakeholders.
The Committee received 23 submissions, three exhibits and conducted one
public hearing in Canberra. Lists of submissions and exhibits, and details of
the hearing, are available at Appendices B, C and D respectively.
Context of the inquiry
The Bill proposes to amend the Fair Work Act 2009 to broaden the
scope of flexible working arrangements provisions, strengthen the grounds for
claims to flexibility from employees with caring responsibilities and enable
Fair Work Australia (FWA) to determine and enforce flexible working
The Committee’s consideration of the Bill occurred in an environment of
significant review of flexible working arrangements. For instance, the
Government has recently received the following reports that consider, among
other matters, flexible working arrangements:
n the Productivity
Commission’s Caring for Older Australians released on 8 August 2011;
n the Productivity
Commission’s Disability Care and Support released on 10 August 2011;
n the Advisory Panel on
the Economic Potential of Senior Australians’ Realising the economic potential of senior Australians—turning
grey into gold, released on 12 December 2011;
n the Australian Law
Reform Commission’s Family Violence and Commonwealth Laws—Improving Legal
Frameworks released on 8 February 2012.
Flexible working arrangements are also under active consideration by the
following reviews that are scheduled to report back to government by the end of
n an independent review
of the Fair Work Act 2009; and
n the Department of
Education, Employment and Workplace Relations (DEEWR) consultation on expanding
the right to request flexible working arrangements under the National Carer
Additionally, the General Manager of Fair Work Australia (FWA) is
currently conducting research into:
n the extent to which
individual flexibility arrangements under modern awards and enterprise
agreements are being agreed to, and the content of those arrangements, and
n the operation of the
provisions of the National Employment Standards (NES) relating to employee
This research is conducted under section 653 of the Fair Work Act
2009 and required to be reported by 26 November 2012.
Background—current provisions for flexible working arrangements
Current provisions for flexible working arrangements are set out in the National
Employment Standards (NES) at Part 2-2 of the Fair Work Act. Division 4
of this part provides for requests for flexible working arrangements and
section 65 specifies employees who are eligible to make a request:
(1) An employee who is a parent, or has responsibility for
the care, of a child may request the employer for a change in working
arrangements to assist the employee to care for the child if the child:
(a) is under school age; or
(b) is under 18 and has a
(2) The employee is not entitled to make the request unless:
(a) for an employee other than a
casual employee—the employee has completed at least 12 months of continuous service
with the employer immediately before making the request; or
(b) for a casual employee—the
(i) is a long term casual
employee of the employer immediately before making the request; and
(ii) has a reasonable
expectation of continuing employment by the employer on a regular and systemic
Examples of the type of changes an employee is entitled to request
include changes in hours of work, work patterns and location of work.
The remainder of section 65 requires that a request for flexible working
arrangements must be in writing and set out the detail of and reasons for the
change and that the employer:
n must provide a
written response within 21 days;
n may refuse a request
only on reasonable business grounds; and
n must include details
of the reasons for refusing a request in the response.
Sections 144 and 202 of the Act also provide for individual
flexibility arrangements (IFA) to meet ‘genuine needs’ of the employers and
employees within awards and enterprise agreements. On entering an IFA the
employer is required to ensure that the employee would be better off overall
than they would have been had the IFA not been entered into.
Outline of the Bill
The Bill has one Schedule of 23 amendments to the Fair Work Act 2009.
Item 8 repeals division 4 of part 2-2 of the Act. Some elements of
division 4 are retained in item 12, which inserts a new part (Part 2-7A) with
amended flexible working arrangements provisions.
Item 13 provides penalties for contravening a flexible working
arrangements order (as determined in Part 2-7A).
Further, item 17 requires Fair Work Australia (FWA) to conduct research
into the operation of Part 2-7A, particularly into requests for changed working
The other proposed amendments are consequential amendments.
Part 2-7A, Division 2—Flexible working arrangements
Part 2-7A proposes eligibility requirements for employees and processes
for requesting changes to working arrangements. The Bill inserts Part 2-7A as a
new section, so that the right to request flexible working arrangements would no
longer be part of the NES.
Division 2 of part 2-7A comprises two clauses. Clause 306D proposes to extend
the right to request flexible working arrangements from employees who are
caring for children under certain circumstances to all employees and their
Clause 306E proposes to explicitly extend and strengthen the right to request
flexible working arrangements for any employee who has responsibility for the care
of another person.
The clause extends the right to request flexible working arrangements
from employees caring for children in certain circumstances to employees who
have responsibility for care of another person.
The right of carers to request flexible working arrangements is
strengthened by requiring employers who refuse a request to show ‘serious
countervailing business grounds’ that warrant the refusal. This test is higher
than the ‘reasonable business grounds’ proposed to apply to all other requests.
Otherwise, the eligibility of employees to request flexible work
arrangements (in terms of required periods of service with an employer), the
procedures by which the request and the employer’s response are made are the
same as those under the current Act.
Part 2-7A, Division 3—Flexible working arrangements orders
Division 3 of Part 2-7A proposes to provide a power to Fair Work
Australia to make enforceable orders ‘to ensure that an employer complies with
proposed section 306D or 306E.’
Subclause 2 of clause 306F specifies that FWA may only receive
applications for fair working arrangements orders from:
(a) an employee or organisation
whose request under subsection 306D(1) or 306E(1) for a change in working
arrangements has been refused;
(b) an employee organisation that
is entitled to represent an employee covered by paragraph (a);
(c) the Age Discrimination
Commissioner, the Disability Discrimination Commissioner or the Sex
Flexible working arrangements orders may be implemented in stages (as
provided in the order), as FWA deems appropriate.
Further, the Bill would make contravening a term of a flexible working
arrangements order subject to a civil remedy provision.
Division 3 also addresses the possibility of inconsistencies arising between
flexible working arrangements orders and modern awards and enterprise
agreements, in which event:
(1) A term of a modern award has no effect in relation to an
employee to the extent that it is less beneficial to the employee than a term
of a flexible working arrangements order that applies to the employee.
(2) 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.
Stakeholders expressed either strong support for or opposition to the proposed
extension of the right to request flexible working arrangements and provide an
Stakeholders who supported the proposal argued that it would help
increase and maintain workforce participation and provide support to otherwise
vulnerable employees with little bargaining power. They argued that the Bill would
encourage employees not currently covered by a right to request, to seek
changes to their working arrangements instead of withdrawing from the workforce
when their circumstances might require these changes.
Some stakeholders who supported the proposed extension of flexible
working arrangements argued that the Bill did not go far enough and called for
the removal of required minimum periods of employment before requests could be
Stakeholders who opposed the Bill, argued that proposing changes to
flexible working arrangements was premature when the Government was currently
considering its response to a number of reports and awaiting the findings of
further reviews on this matter. In particular, stakeholders
expressed reservations that the Bill pre-empted the comprehensive independent
review of the Fair Work Act due to report to government by 31 May 2012.
Ai Group also suggested that the current flexible working arrangement
provisions have proved sufficient with the vast proportion of flexible working
arrangements being agreed directly between employers and employees.
Apart from the broader debate relating to the desirability of extending
the scope of the right to request flexible working arrangements, specific
concerns with the Bill that emerged in evidence focused on the proposed:
n removal of flexible
working arrangements from the NES;
n introduction of
enforceable flexible working arrangements orders; and
n retention of certain
eligibility requirements for the right to request flexible working arrangements.
Removing flexible working arrangements provisions from the NES
The Bill proposes removing flexible working arrangements provisions from
the NES and inserting amended provisions in the new Part 2-7A. The NES are
minimum standards that were developed through extensive consultation with
employer and employee organisations. Notably, as minimum standards, the NES
cannot be overridden by an enterprise agreement.
Inserting flexible working arrangements provisions outside the NES would
mean that they are no longer a minimum standard. A flexible working
arrangements order could be made for an employee, but it would not be part of
the NES and thus could be overridden by an enterprise agreement. The Ai Group described
an arrangement whereby a collective agreement could override flexibility for
individuals as ‘counterintuitive’.
The Department of Education, Employment and Workplace Relations (DEEWR) suggested
that the proposed removal of flexible working arrangements from the NES could
cause public confusion as the NES are ‘broadly understood and were developed
through extensive consultation.’
Job Watch supported the maintenance of flexible working arrangements
within the NES on the grounds that:
Since [the NES] is becoming a recognised set of minimums that
smaller employers can become aware of and understand … putting [flexible
working arrangements] in a different section of the Act … will be more
complicated for smaller employers … Even a set of employees or a union that is
not the most sophisticated can point to the NES and say, “We need this in our
enterprise agreement – full stop…”
Some stakeholders appeared unaware that the Bill proposed to remove
flexible working arrangements provisions from the NES.
Others expressed awareness of the proposal, but were uncertain as to the reason
and what ramifications such a move might have.
Of the nine organisations and one individual that appeared at the public
hearing, which included employer, employee and carer organisations, all expressed
outright opposition to or reservation at the proposed removal of flexible
working arrangements from the NES.
By contrast, a late submission received from the United Firefighters
Union of Australia (UFUA) supported the Bill ‘in that it specifically provides
that flexible arrangements cannot be inconsistent with a term of an enterprise
agreement.’ UFUA argued that ‘individual circumstances must be balanced in the
context of the workplace or industry.’
The Committee notes the NES is a consolidated baseline of minimum
employment standards, and so strongly disagrees with the proposed removal of
flexible working arrangements provisions from the NES. The current facility that
allows flexible working arrangements to operate within the framework of enterprise
agreements does not unduly expose workplaces or industries to unacceptable
outcomes because flexibility is based on a right to request and thus can be
denied on reasonable business grounds.
DEEWR indicated that as Part 2-7A was outside the NES, it would rely on
a different enforcement framework. The Department expressed concern that this
might increase the workload of Fair Work Australia.
The proposed enforcement framework will be considered in greater detail in the
Flexible working arrangements orders
The Bill proposes to empower Fair Work Australia to make enforceable
flexible working arrangements orders. Employee advocates generally
supported the proposal for FWA to make flexible working arrangements orders. 
Ms Anna Chapman typified support for flexible working arrangements orders:
At present the [Fair Work] Act rule that the only basis for
an employer to refuse a request for flexibility is ‘reasonable business
grounds’ is not enforceable as a contravention of Part 2‐2 Division 4 of the … Act. It cannot be litigated directly, as no cause of
action arises where an employer refuses a request on wholly unreasonable
Carers Australia expressed concern that ‘trying to impose [orders] on
employers simply invites resistance’ and stated that it was hesitant about the
compulsory aspect of the proposal because ‘the very last thing we want to do is
to give employers a reason for not employing carers.’
Ms Chapman called this suggestion ‘nonsensical’ because ‘the majority of
employees are likely to be carers at some stage’ and drew a parallel with
arguments that the Sex Discrimination Act would result in discrimination
against the employment of women. 
Carers Australia cautioned that caring requirements can be unpredictable
and subject to change and warned that forcing a rigid process or an inflexible order
onto employers and employees may not actually achieve flexibility.
The Ai Group echoed concerns that FWA orders were not easily altered or terminated.
Job Watch sought the insertion of additional clauses in the Bill to allow for
revoking or varying an order.
The Ai Group expressed in principle opposition to third-party
arbitration suggesting that flexible working arrangements orders would be
contrary to the purpose of the Fair Work Act in replacing a framework
that has facilitated bargaining and cooperation with a move to a more
adversarial system with resolution by arbitration.
The power to impose flexible working arrangements orders appears to be
at odds with one of the objects of the Fair Work Act; namely to
a system that has at its heart bargaining in good faith at
the enterprise level, as this is essential to maximise workplace cooperation,
improve productivity and create rising national prosperity…
The proposal moves away from the principle of encouraging dialogue
between employees and employers so that a mutually agreeable arrangement can be
struck. The principle underlying a right to request flexible working
arrangements and requirement to respond is the facilitation of a better understanding
by each party of the requirements of the other.
Retention of eligibility requirements for requests
Clauses 306D and 306E retain present minimum required periods of
employment for employees to be entitled to request flexible working
Many submitters called for these eligibility requirements to be
shortened or removed. For instance, the Work +
Family Policy Roundtable commented that the requirement for 12 months of
continuous service with an employer prior to requesting flexible working
arrangements disadvantages already vulnerable employees who may have patchy
work history due to caring responsibilities.
The Women and Work Research Group suggested that the eligibility
requirement be shortened to six months, while Ms Anna Chapman,
the Work + Family Policy Roundtable, Job Watch and the National Working Women’s
Centres called for the abolition of these eligibility requirements.
Job Watch argued that the right to request flexible working arrangements:
does not relate to something such as unfair dismissal where
the employer needs some time to work out whether the employees is suitable … It
is not something that compensates an employee for their length of service. Emergencies
and illnesses happen out of the blue…’
Eligibility to access flexible working arrangements has been the subject
of recent reviews that are presently under consideration by the Government. Furthermore,
this matter is under active consideration as part of a series of further reviews.
The Committee looks forward to the Government’s response to these reviews where
any proposal to change flexible working arrangements provisions will be
provided within the context of more comprehensive and systematic changes to the
workplace relations system.
The Committee notes the Government’s commitment to review flexible
working arrangements, particularly in relation to the right to request for
people with responsibility for the care of another person, and endorses the National
Carer Recognition Framework and the consultations DEEWR is currently holding
under the National Carer Strategy.
The majority of the Committee also supports the principle embodied in
the Bill that the right to request flexible working arrangements should be
extended to classes of employees other than carers, particularly those affected
by domestic and family violence.
Most evidence to the inquiry supported the proposed extension of the
right to request flexible working arrangements to broader categories of carers
and other employees. However, concerns were expressed about the other aspects
of the Bill. Perhaps, the most emphatic of these was the proposed removal of
flexible working arrangements from the NES. There appears little merit in
removing flexible working arrangement provisions from the NES.
The Committee is also concerned that by proposing that Fair Work
Australia be able to impose flexible working arrangements orders, the Bill
would alter the objectives of the workplace relations system as provided by the
Fair Work Act 2009. It would be inappropriate to recommend a change that
would alter the fundamentals of Australia’s industrial relations framework
without extensive and transparent consultation especially where other, more
comprehensive reviews, are due to report to Government shortly or where recent reports
are under active consideration.
The Committee notes the review of the Fair Work Act, and other
reviews that have considered flexible working arrangements as well as the
policies that will inform the Government’s comprehensive response to these
reviews. Subject to the above comments, the majority of the Committee supports
the general principle of people having greater rights to request flexible
working arrangements, but recommends that the Bill be considered after the
Independent Review of the Act has been completed and the Government’s response
has been released.
||In light of the Independent Review of the Fair Work Act
2009 currently underway, the Committee recommends the Bill be considered
after the Independent Review of the Act has been completed and the
Government’s response has been released.
Amanda Rishworth MP