Flexible working arrangements
From 6 June 2023, new provisions commenced in the Fair Work Act regarding requests to work on a flexible basis.
Full-time and part-time employees
These employees can request flexible work arrangements if they’ve worked with the same employer for at least 12 months and they:
- are the parent, or have responsibility for the care, of a child who is school aged or younger
- are a carer (under the Carer Recognition Act 2010)
- have a disability
- are 55 or older
- are pregnant
- are experiencing family and domestic violence, or
- provide care or support to an immediate family or household member who is experiencing family and domestic violence.
Casual employees can request flexible work arrangements if:
- they meet one of the above (full-time/part-time) criteria
- they’ve been working for the same employer regularly and systematically for at least 12 months, and
- there’s a reasonable expectation of continuing work with the employer on a regular and systematic basis.
Some examples are
1. Greg has been working full-time for his employer for over a year. He wants to start work at 10 am instead of 9 am so he can take his son to pre-school. He can request flexible working arrangements to help him care for his son.
2. Shirley is 60 years old and has been working part-time. Shirley wants to finish early on Wednesdays so she can volunteer at her local hospital. She can request flexible working arrangements because she:
- is over 55-years-old
- has been working with the same employer for more than a year.
3. Riley is a casual employee who has been working for the same employer regularly and systematically for over a year. She wants to start later on Wednesday mornings to attend regular medical appointments during her pregnancy. Riley can request these flexible working arrangements because:
- she’s pregnant
- there’s a reasonable expectation of her continuing work with her employer on a regular and systematic basis.
How employees can request flexible working arrangements
Requests for flexible working arrangements have to:
- be in writing
- explain what changes are being asked for
- explain the reasons for the requested change.
What employers should do with a request
Employers who get a request from an employee for flexible working arrangements need to respond in writing within 21 days. The response has to include whether the request is approved or refused. There are rules for refusing a request.
Employers and employees can agree to working arrangements that are different from what the employee had originally requested. Where this happens, the employer needs to confirm the agreed changes in writing within 21 days of getting the employee’s request.
Refusing a request
An employer can only refuse a request on reasonable business grounds and if they have:
- discussed the request with the employee and genuinely tried to reach an agreement on alternative arrangements to accommodate the employee’s circumstances
- considered the consequences for refusing the employee’s request.
Reasonable business grounds
Reasonable business grounds can include:
- the requested arrangements are too costly
- other employees’ working arrangements can’t be changed to accommodate the request
- it would be impractical to change other employees’ working arrangements or hire new employees to accommodate the request
- the request:
- is likely to result in a significant loss in efficiency or productivity, or
- would have a significant negative impact on customer service.
The employer’s circumstances can be factored in when considering if the employer has reasonable business grounds for refusing a request. For example, the employer’s size and nature of the business are important is assessing whether flexibility can be offered.
Writing a refusal response
When an employer refuses a request, the written response needs to include:
- the reasons for the refusal including an explanation of the grounds for refusing and how they apply to the request
- other changes the employer is willing to make or a statement that there aren’t any changes to be made
- information about getting help from the Fair Work Commission for disputes about flexible working arrangements.
Lodging a dispute with the Commission
If the employer and employee can’t resolve a dispute about flexible working arrangements, they can apply to the Fair Work Commission (the Commission) for help.
The Commission can hear disputes about flexible working arrangement requests and make orders to resolve disputes. This includes if the employer:
- refuses an employee’s request
- doesn’t respond to a request within 21 days.
The Commission will usually attempt to resolve the dispute using conciliation or mediation first. This is a less formal process involving discussions between an employer and employee to resolve the dispute.
If there isn’t a resolution, the Commission can arbitrate the dispute. This is a more formal process, where employers and employees can present evidence and arguments. The Commission makes binding orders that employees and employers need to comply with.
State and territory laws
If a state or territory law provides an employee with a better entitlement to flexible working arrangements, that law will continue to apply. It may be that a state discrimination law has provisions that exceed the Fair Work Act’s provisions and so these must be adhered to.