Award changes in favor of supportive provisions – are you across your obligations?

The Fair Work Commission recently handed down two decisions in favour of creating a more supportive workplace for employees covered by Modern awards. These provisions include changes to Domestic Violence Leave and Family Friendly Working Arrangements. Read on to find out what this means for your business.

Decision: Domestic Violence Leave

The Fair Work Commission has recently made a decision to include a Domestic Violence clause in modern awards.

This amendment will mean that all employees covered under an award will be entitled to 5 unpaid days of family and domestic violence leave each year. Whilst the clause has not yet been finalised, we do know that the entitlement will:

  • cover all employees, regardless of whether they are full-time, part-time or casual;
  • not be pro-rated for hours worked;
  • not accrue progressively, but will be made immediately available to an employee at the start of each year of service;
  • not accumulate year-to-year; and
  • be accessible even if the employee has a paid leave balance which could cover the leave.

This change has not yet come into effect, and once it does, it will only apply to award covered employees; however, we would recommend keeping flexibility and support in mind whether or not your employees are entitled to it. With 1 in 4 women experiencing domestic or family violence in Australia (FWCFB 2018) this issue is likely to affect everyone and have a significant impact on workplaces not just those that are award covered.

Decision: Family Friendly Working Arrangements

In support of employees’ right to request flexibility (under the National Employment Standards) the Commission has made a decision to further change modern awards to expand the scope and process of such requests.

This means that employers will be more obliged to accommodate requests for flexible working arrangements if they are made because of parental or caring responsibilities. Examples of possible arrangements include telecommuting, job sharing, flexi-time, working reduced hours or condensed days, and changing to part-time.

The important thing to keep in mind with this decision is that these provisions will supplement the current minimum standard in the NES. This means that:

  • Permanent and casual employees who have been employed for at least 6 months (currently 12 months under the NES) will become eligible to request flexible working arrangements relating to caring responsibilities;
  • Employers will have to consult with the employee, and with their best efforts, genuinely and reasonably accommodate any such requests
  • If a request is refused, the employer will need to comprehensively detail the reason for refusal, including any changes that have already been made to accommodate for flexibility, or if no change was agreed, the details of any change in working arrangements that the employer could offer to the employee.

In short, these changes mean that the onus of proof will now fall on the employer to show that they have genuinely tried to accommodate for flexibility requests.

What should you consider, outside of the legislation?

If you don’t already, start thinking about your organisation and whether current practices are conducive to providing employees with the support and flexibility they need. Consider: 

  • Do you have flexible policies?
  • Does your culture support flexibility?
  • Do you have an Employment Assistance Program (EAP) to support employees?
  • Are your managers aware of the signs to look out for in domestic violence victims?
  • Are your managers trained to deal with conversations around domestic violence and flexibility?

So what does this mean now?

As the clauses have not yet come into effect, at this point we’d suggest just watching this space and having a think about questions such as whether you need to update your policies, and if your managers aware of and prepared for these changes.

If you’re not sure what you would do if either of these situations was brought to your attention, or whether your employees consider your workplace to be supportive, it might be time to change your practices before the new award clauses come into effect, or give us a call if you would like some assistance with your support initiatives.

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