Western Australian Numbered Acts Western Australian Numbered Acts After section 39E
insert:
Part 4A — Flexible working arrangement requests
39F. Employee may request flexible working
arrangement
(1) If an employee
would like to change their working arrangements because any of the
circumstances referred to in subsection (2) apply to the employee, the
employee may make a request to the employer for a change in working
arrangements relating to those circumstances (a flexible working arrangement
request ).
(2) The circumstances
are as follows —
(a) the
employee is pregnant;
(b) the
employee is the parent of, or has responsibility for the care of, a child;
(c) the
employee is a carer as defined in the Carers Recognition Act 2004
section 5;
(d) the
employee has a disability;
(e) the
employee is 55 years of age or older;
(f) the
employee is experiencing family and domestic violence;
(g) the
employee provides care or support to a member of the employee’s family
or household who requires care or support because the member is experiencing
family and domestic violence.
(3) In
subsection (2) —
child means a child who is of compulsory school
age in accordance with the School Education Act 1999 or who is younger
than that age.
(4) A flexible working
arrangement request may include changes to —
(a) the
employee’s hours of work, including working on fewer days or for fewer
hours, or both; or
(b) the
employee’s pattern of work, including working on different days or at
different times, or both; or
(c) the
location of the employee’s work.
(5) The employee is
not entitled to make the request unless —
(a) for
an employee other than a casual employee — immediately before
making the request, the employee has completed at least 12 months of
continuous service with the employer; or
(b) for
a casual employee, the employee —
(i)
immediately before making the request, has been employed
by the employer on a regular and systematic basis for a sequence of periods of
employment during a period of at least 12 months; and
(ii)
has a reasonable expectation of continuing employment
with the employer on a regular and systematic basis.
A flexible working
arrangement request must be in writing and set out the following
details —
(a) the
flexible working arrangement sought;
(b) the
reasons for seeking that arrangement;
(c)
which of the circumstances in section 39F(2) apply to the employee.
39H. Responding to flexible working arrangement
request
(1) If an employee
makes a flexible working arrangement request, the employer must give the
employee a written response to the request within 21 days.
(2) The response
must —
(a)
state that the employer grants the request; or
(b) if,
following discussions, the employer and the employee agree to alternative
changes to the employee’s working arrangements from those set out in the
request — set out the agreed changes; or
(c)
subject to subsection (3) — state that the employer refuses
the request and include the matters required by section 39J.
(3) The employer may
refuse the request only if —
(a) the
employer has —
(i)
discussed the request with the employee; and
(ii)
genuinely tried to reach an agreement with the employee
about making changes to the employee’s working arrangements to
accommodate the circumstances referred to in section 39F(2);
and
(b) the
employer and the employee have not reached an agreement; and
(c) the
employer has considered the consequences of the refusal for the employee; and
(d)
there are reasonable business grounds for refusing the request.
(4) To avoid doubt,
subsection (3)(a)(ii) does not require the employer to agree to a
flexible working arrangement if the employer would have reasonable business
grounds for refusing the request.
(5) Despite
subsection (3), the employer may refuse a request if agreeing to the
request would contravene a provision of an industrial instrument which extends
to and binds the employer and employee.
39I. Reasonable business grounds for refusing
request
For the purpose of
section 39H(3)(d), reasonable business grounds for refusing a flexible
working arrangement request include the following —
(a) the
requested arrangement would be too costly for the employer;
(b)
there is no capacity to change the working arrangements of other employees to
accommodate the requested arrangement;
(c) it
would be impracticable to change the working arrangements of other employees,
or recruit new employees, to accommodate the requested arrangement;
(d) the
requested arrangement would be likely to result in a significant loss to the
employer’s efficiency or productivity;
(e) the
requested arrangement would be likely to have a significant negative impact on
customer service.
39J. Employer must explain grounds for refusal
If the employer
refuses the request, the employer’s written response under
section 39H(1) must —
(a)
include details of the reasons for the refusal; and
(b) set
out the employer’s particular business grounds for refusing the request
and explain how those grounds apply to the request; and
(c)
either —
(i)
set out the changes in the employee’s working
arrangements (other than the requested changes) that the employer would be
willing to make to accommodate, to any extent, the employee’s
circumstances referred to in section 39F(2); or
(ii)
state that there are no such changes;
and
(d)
advise the employee of the process in section 39K and the IR Act
Part II Division 3A Subdivision 2 in relation to a flexible
working arrangement dispute.
39K. Employer and employee must attempt to resolve
dispute by discussions at workplace level
(1) Before making a
referral under the IR Act section 29 in relation to a flexible
working arrangement dispute, the employer and employee must make reasonable
attempts to resolve the dispute by discussions at the workplace level.
Note for this section:
The IR Act
section 29(1) provides for the referral of an industrial matter relating
to a flexible working arrangement dispute to the Commission.
(2) A party to a
dispute may authorise a person or organisation to support or represent the
party in the discussions.