Flexible working arrangement requests
Flexible working arrangements are becoming increasingly common, and there are now expanded avenues for pursuing rejected requests.
What is a flexible working arrangement request?
There are no prescribed rules for what the request should look like. However, flexible working arrangements typically are, for example:
- A request to go part-time
- A request to start late or finish early
- A request to work from home, etc.
There should be a connection between the request and the reason for the request. For example, if you have to care for your child after school on a particular day, the request might be to finish work at 3.00 pm, but to also start work earlier that day.
Who is eligible?
Section 65 of the Fair Work Act 2009 (Cth) (FW Act) provides that the following employees may be able to make a flexible working arrangement request:
- Pregnant employees
- Employees who are a parent, or who have responsibility for a child of school age or younger
- Carers
- Employees with a disability
- Employees over 55
- Employees experiencing family and domestic violence
- Employees providing immediate care and support for an immediate family member or household member who is experiencing domestic violence.
The employee must have more than 12 months’ service at the time of making the request.
What formalities apply?
The request must be in writing and must also set out the reason for the request.
Can the employer refuse the request?
A request can be refused on reasonable business grounds.
However, due to recent amendments to the FW Act under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, there are now many more obligations on an employer who receives a flexible working arrangement, including the obligation to:
- Respond in writing within 21 days
- Have a discussion about the request
- ‘Genuinely try’ to reach an agreement that accommodates the reason for the request
- Provide detailed reasons for the refusal in writing.
On what grounds can the employer refuse?
The employer can refuse if there are reasonable business grounds for doing so.
The FW Act provides the following non-exhaustive list of reasonable business grounds:
- The request would be too costly
- There is no capacity to change the working arrangements of other employees to accommodate the request
- It would be impractical to change the working arrangements of other employees or recruit new employees to accommodate the request
- The request would likely result in a significant loss in efficiency or productivity
- The request would likely have a significant negative impact on customer service.
What can I do if my request is refused?
One of the most significant amendments to the FW Act is that employees can now take a flexible working arrangement dispute to the Fair Work Commission (FWC). Before this amendment, the FW Act specifically excluded these disputes from being referred to FWC, and it was only possible to bring a dispute if an enterprise agreement had a specific dispute resolution clause relating to flexible working arrangement.
The FWC can now deal with the dispute if discussions at the workplace level have failed to resolve the issue. The FWC can firstly deal with the dispute by means ‘other than arbitration’ (for example, by conciliation), but can also hold an arbitration (formal hearing) in relation to the dispute.
The FWC has indicated that in the 2024-2025 financial year, 306 flexible working arrangement disputes were lodged. But the recent amendments have meant that many employers and employers are resolving these matters without recourse to the FWC.
How can we help?
If you require a flexible working arrangement, we can
- Assist you with the request
- Assist in negotiations with the employer
- Take your matter to FWC or another tribunal if required.
This information only relates to employees under the Fair Work Act (Cth) 2009. It is information only and is not legal advice. If you require advice or assistance in relation to a flexible working arrangement request, please click ‘book now’ for a confidential consultation.
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