By Sean Melbourne

The right to request flexible working arrangements has been available to eligible employees under the Fair Work Act for some time now. Recent changes to Modern Awards, however, have added additional requirements to consult with employees and provide alternatives after a request is made.  

Who can request flexible working arrangements?

An employee can request flexible working arrangements if they have completed at least 12 months of employment and:

• are a parent of a child who is of school age or younger (or have responsibility for the care of such a child)
• are a carer
• have a disability
• are 55 or older
• are experiencing violence form a member of their family
• provide care or support to a member of their immediate family, or a member of their household, who requires care or support because they are experiencing violence from the member’s family.

What discussions should take place?

Before responding to a request, you must discuss the request with the employee and genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances. The discussions must have regard to:

• the needs of the employee arising from their circumstances
• the consequences for the employee if changes in working arrangements are not made and
• any reasonable business grounds for refusing the request.

What happens if a request is refused?

You must give the employee a response in writing within 21 days of the request being made. If you decide to refuse the request, the response must:

• include reasons for the refusal, including the reasonable business ground(s) and how the ground(s) apply
• state whether or not there are any changes in working arrangements that you can offer the employee so as to better accommodate the employee’s circumstances; and
• if you can offer the employee such changes, set out those changes.

What happens when an arrangement is agreed to?

If you agree to the employee’s original request, you can simply provide a written response notifying them of this.

If you agree with the employee on a change in working arrangements that differs from that initially requested by the employee, you must provide them with a written response setting out the agreed changes.

Can employees dispute the decision?

If your employee disputes whether you have fulfilled the discussion and written response requirements of the Award, your employee has the option to apply to the Fair Work Commission to resolve the dispute.

What should I do next?

We all want the best for our employees both in and out of the workplace. If you need a hand considering requests from your employees for flexible working arrangements, get in touch with our employment lawyer, Sean Melbourne at sean.melbourne@sourcelegal.com.au.

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