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2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
FAIR WORK AMENDMENT (BETTER WORK/LIFE BALANCE) BILL 2012
EXPLANATORY MEMORANDUM
Circulated by the authority of Adam Bandt
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FAIR WORK AMENDMENT (BETTER WORK/LIFE BALANCE) BILL 2012
OUTLINE
The Fair Work Amendment (Better Work/Life Balance) Bill 2012 amends the Fair Work Act
2009.
The Bill deals with the right to request flexible working arrangements to help employees to
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.
NOTES ON CLAUSES
Clause 1 - Short Title
This is a formal provision specifying the short title.
Clause 2 - Commencement
The Bill's provisions are to commence the day after the Bill receives Royal Assent
Clause 3 - Schedules
This clause provides that an Act that is specified in a Schedule is amended or repealed as set out
in that Schedule, and any other item in a Schedule operates according to its terms.
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Schedule 1--Amendments to the Fair Work Act 2009
Item 1 amends the existing 5(8)(a) to provide that flexible working arrangements orders can be
made for national system employees who are covered by the National Employment Standards.
Item 2 inserts flexible working arrangements orders into the Dictionary.
Item 3 changes "and to "or" at the end of 43(2)(a)(ii).
Item 4 adds flexible working arrangements orders to the other terms and conditions of employment
provided under the Fair Work Act.
Item 5 removes the reference to section 65(5) in relation to contravening the National Employment
Standards.
Item 6 updates note 1 in subsection 44(2) to reflect the removal of section 65(5).
Item 7 removes the reference to section 65(5) in Note 2 in subsection 44(2).
Item 8 repeals Division 4 of Part 2-2 which contains the existing provisions regarding requests for
flexible working arrangements.
Item 9 removes the reference to section 65(5) in the note in section 146.
Item 10 inserts flexible working arrangements as a permitted matter in the making of an enterprise
agreement in section 172(1).
Item 11 removes the reference to section 65(5) in notes 1 and 2 in section 186(6).
Item 12 inserts a new Part 2 7A regarding flexible working arrangements.
Division 1 gives an introduction to Part 2-7A.
Section 306A gives a guide to Part 2-7A--Flexible working arrangements.
Section 306B defines employee as a national system employee and employer as a national system
employer.
306C (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 Part 2-7A.
306C (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.
Division 2 sets out the process for requesting flexible working arrangements.
Section 306D 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, 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
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employee 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 on reasonable business grounds and must include details of
the reasons for the refusal in the written response.
Section 306E 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 on serious countervailing business grounds and must
include details of the reasons for the refusal in the written response.
Division 3 sets out the arrangements for flexible working arrangements orders.
Section 306F gives Fair Work Australia the power to make flexible working arrangements orders it
considers appropriate to ensure compliance with section 306D or 306E and defines who may apply for
a flexible working arrangements order. Fair Work Australia 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.
Section 306G allows Fair Work Australia to order changed working arrangements to be implemented
in stages as Fair Work Australia thinks appropriate.
Section 306H provides that an employer must not contravene a term of a flexible working
arrangements order and makes a breach subject to civil remedy provisions.
306I 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.
Item 13 inserts a new table item after item 9 in subsection 539(2) that sets out the standing,
jurisdiction and maximum penalties that apply for a breach of a working arrangements order.
Item 14 removes the reference to section 65(5) in note 4 in section 545(1).
Item 15 inserts a new section after paragraph 557(2)(f) that defines a flexible working arrangements
orders for the purposes of section 557. This allows two or more contraventions of a flexible working
arrangements orders 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.
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Item 16 inserts a new paragraph 576(1)(fa) that gives Fair Work Australia functions in relation to
flexible working arrangements.
Item 17 inserts a new paragraph 653(1)(c) and 653(1)(ca). These paragraphs require the General
Manager of Fair Work Australia to conduct research into the operation of Part 2-7A in relation to
requests for changed working arrangements.
Item 18 inserts a new paragraph 675(2)(ea) that makes it clear a breach of a flexible working
arrangements order is not a criminal offence.
Item 19 inserts a new subsection 716(1)(g) that allows a Fair Work Australia inspector to issue a
compliance notices in relation to a term of a flexible working arrangements order.
Item 20 removes the reference to section 65(5) in section 739(2) that deals with disputes that cannot
be heard by Fair Work Australia.
Item 21 removes the reference to section 65(5) in the note in section 739(2).
Item 22 removes the reference to section 65(5) in section 740(2).
Item 23 removes the reference to section 65(5) in the note in section 740(2).
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