The majority voted against amendments introduced by Senator Barbara Pocock (Greens), which means they failed.

What were the amendments?

Senator Pocock explained that:

This amendment does two things. It widens the eligibility for the right to request flexibility, and it establishes a positive duty in favour of creating flexible workplace in Australia. It's 2022. Flexibility should be available to all employees, not just those with narrowly defined family responsibilities. It's only when seeking flexibility is something available to all that the stigma will be removed from asking for it, and we will see more men seeking flexibility and hopefully sharing domestic and care duties as a consequence. Wider eligibility for flexibility has been adopted in the UK, based on clear evidence about its value. Guess what? The sky has not fallen.

The second part of this amendment establishes a positive duty to create flexible workplaces. A modern workplace should create an environment that actively anticipates and responds to the needs of its workers and doesn't require individuals to have to push for it one by one individually, too often at risk of job security. So many employers already do this, talking to employees. This amendment will encourage others to create that positive flexible environment.

Amendment text

(1) Schedule 1, Divisions 1 and 2, page 130 (line 2) to page 131 (line 17), omit the Divisions, substitute:

Division 1 — Requests for flexible working arrangements

Fair Work Act 2009

446 Subsections 65(1), (1A) and (1B)

Repeal the subsections, substitute:

(1) If an employee would like to change his or her working arrangements, the employee may request the employer for a change in working arrangements.

Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.

(2) Schedule 1, item 459, page 132 (lines 4 and 5), omit "relating to circumstances that apply to the employee".

(3) Schedule 1, item 459, page 132 (lines 20 and 21), omit "to accommodate the circumstances mentioned in subsection (1)".

(4) Schedule 1, item 459, page 133 (lines 34 to 36), omit "that would accommodate, to any extent, the circumstances mentioned in subsection (1) and".

(5) Schedule 1, item 463, page 134 (lines 25 and 26), omit "relating to circumstances that apply to the employee".

(6) Schedule 1, item 463, page 136 (lines 25 and 26), omit "to accommodate, to any extent, the circumstances mentioned in paragraph 65B(1)(a)".

(7) Schedule 1, Part 11, page 138 (after line 9), at the end of the Part, add:

Division 5 — Positive duty for flexible working arrangements

Fair Work Act 2009

469AA After paragraph 336(1)(c)


(ca) to protect the ability of persons to balance work and family responsibilities, and in doing so to promote gender equality;

469AB After section 351


351A Positive duty to ensure flexible working arrangements are made available

Positive duty

(1) An employer must take reasonable and proportionate measures to ensure that, as far as possible, flexible working arrangements are made available to the employees of the employer to assist them to balance their work and family responsibilities.

Note: This section is a civil remedy provision (see Part 4-1).

(2) The following matters are to be taken into account in determining whether an employer complies with subsection (1):

(a) the size, nature and circumstances of the employer's business or undertaking;

(b) the employer's resources, whether financial or otherwise;

(c) the practicability and the cost of making flexible working arrangements available;

(d) whether the employer has complied with any guidelines prepared and published by the FWC under subsection (3);

(e) any other relevant matter.

FWC guidelines

(3) The FWC has the function to prepare, and to publish in such manner as the FWC considers appropriate, guidelines for complying with subsection (1).

(4) In performing its functions under subsection (3), the FWC must have regard to:

(a) the need for guidelines to be available in multiple languages; and

(b) the cultural diversity of Australian workplaces.

Positive duty additional to requirements und er Division 4 of Part 2-2

(5) To avoid doubt, the requirement in subsection (1) applies in addition to the requirements in Division 4 of Part 2-2 (requests for flexible working arrangements).

469AC Subsection 539(2) (cell at table item 11, column 1)

After "351(1)", insert:


Votes Not passed by a modest majority

Nobody rebelled against their party.

Party Votes
Australian Greens (100% turnout) 12 Yes 0 No
Penny Allman-Payne Queensland Yes
Dorinda Cox WA Yes
Mehreen Faruqi NSW Yes
Sarah Hanson-Young SA Yes
Nick McKim Tasmania Yes
Barbara Pocock SA Yes
Janet Rice Victoria Yes
David Shoebridge NSW Yes
Jordon Steele-John WA Yes
Lidia Thorpe Victoria Yes
Larissa Waters Queensland Yes
Peter Whish-Wilson Tasmania Yes
Australian Labor Party (80% turnout) 0 Yes 20 No
Tim Ayres NSW No
Catryna Bilyk Tasmania No
Carol Brown Tasmania No
Anthony Chisholm Queensland No
Patrick Dodson WA No
Don Farrell SA No
Katy Gallagher ACT No
Nita Green Queensland No
Karen Grogan SA No
Malarndirri McCarthy NT No
Deborah O'Neill NSW No
Fatima Payman WA No
Helen Polley Tasmania No
Louise Pratt WA No
Tony Sheldon NSW No
Marielle Smith SA No
Glenn Sterle WA No
Anne Urquhart Tasmania No
Jess Walsh Victoria No
Linda White Victoria No
Raff Ciccone Victoria Absent
Jenny McAllister NSW Absent
Jana Stewart Victoria Absent
Murray Watt Queensland Absent
Penny Wong SA Absent
Jacinta Nampijinpa Price NT Country Liberal Party Absent
Andrew McLachlan SA Deputy President No
David Pocock ACT Independent Yes
Jacqui Lambie Network (0% turnout) Absent
Jacqui Lambie Tasmania Absent
Tammy Tyrrell Tasmania Absent
Liberal National Party (100% turnout) 0 Yes 2 No
Matthew Canavan Queensland No
James McGrath Queensland No
Liberal Party (54% turnout) 0 Yes 13 No
Alex Antic SA No
Wendy Askew Tasmania No
Andrew Bragg NSW No
Slade Brockman WA No
Michaelia Cash WA No
Claire Chandler Tasmania No
Jonathon Duniam Tasmania No
David Fawcett SA No
Sarah Henderson Victoria No
Matt O'Sullivan WA No
Linda Reynolds WA No
Paul Scarr Queensland No
David Van Victoria No
Simon Birmingham SA Absent
Richard Colbeck Tasmania Absent
Hollie Hughes NSW Absent
Jane Hume Victoria Absent
Kerrynne Liddle SA Absent
Jim Molan NSW Absent
James Paterson Victoria Absent
Marise Payne NSW Absent
Gerard Rennick Queensland Absent
Anne Ruston SA Absent
Dean Smith WA Absent
National Party (25% turnout) 0 Yes 1 No
Perin Davey NSW No
Ross Cadell NSW Absent
Susan McDonald Queensland Absent
Bridget McKenzie Victoria Absent
Pauline Hanson's One Nation Party (50% turnout) 0 Yes 1 No
Malcolm Roberts Queensland No
Pauline Hanson Queensland Absent
Sue Lines WA President Absent
Ralph Babet Victoria United Australia Party No
Totals (68% turnout) 13 Yes – 39 No