The ACTU has been running a test case for all Australian workers in an effort to remove the innate discrimination that sits in Australia’s Fair Work Act and a full bench decision has been handed down. The outcome is not the victory that we would want, it is a small win in the incremental progress to improve the capacity of workers to have reasonable negotiations with employers about their right to provide care to their loved ones and work.
The use of the term, ‘reasonable operational requirements’ in Clause 65C of the Fair Work Act has is a classic example of how the rules are broken. This section of the Act is relied upon by Australian employers to prevent workers from working part time or varying their hours to accommodate care. It is the only section of the Act that prevents a worker from using the powers of the Fair Work Commission to resolve a dispute. The new wording has increased the expectation that employers ‘discuss and genuinely try to reach agreement’. This new right will extend to all categories of people who can currently request flexible work under s 65, not just parents and carers.
Employees will still not have the right to dispute whether an employer has reasonable business grounds to refuse their request. It will however be possible to take a dispute about whether there was genuine attempts to ‘discuss and genuinely try to reach agreement’ using the Commission’s dispute settling process. We know there are instances where this will mean that members remain in the workforce as their unions will be able to rely on the leverage of this to negotiate an outcome that works for their families.