With a number of major brands across Australia issuing return-to-office mandates, many employers may be wondering what their legal obligations are when handling requests for flexible working arrangements.
Under the Fair Work Act 2009, certain employees have a right to request flexible working arrangements. Below, we break down who can make a request – and what you need to do if you receive one.
When can someone make a request?
A permanent employee can request flexible working arrangements if any of the following circumstances apply to them:
- they are pregnant;
- they are the parent, or have responsibility for the care of a child who is school age or younger;
- they are a carer under the Carer Recognition Act 2010;
- they have a disability;
- they are 55 years old or older;
- they are experiencing family and domestic violence; or
- they provide care or support for a member of their immediate family, or a member of their household, who requires care or support because they are experiencing family and domestic violence, and the employee would like to change their working arrangements because of those circumstances.
Did you know? The 12-month service rule
In addition to their circumstances, an employee needs to have completed at least 12 months of continuous service before they become entitled to make a request. This rule applies to both permanent full-time and part-time employees.
A casual employee can only request flexible working arrangements if:
- they have been employed on a regular and systematic basis and have been employed on that basis for a sequence of periods of employment during a period of at least 12 months; and
- they have a reasonable expectation of continuing employment on a regular and systematic basis.
What type of arrangements can be requested?
The flexible working arrangements requested need to relate to the circumstances that qualify the employee to request flexible working arrangements.
Examples include changing hours of work, changing patterns of work and changing the location of work.
When an employee returns to work after taking leave in relation to the birth or adoption of a child, the employee can ask to work part-time to help care for the child.
The process of making and responding to a request
Making a request
An employee’s request for flexible working arrangements needs to be made in writing, and must set out the details of the change sought and the reasons for the change.
Responding to a request
The employer must provide a written response to the request within 21 days, stating whether they grant or refuse the request.
If, following discussions, the employer and employee agree to a different arrangement to what the employee requested, the written response should set out what the agreed change is.
Can an employer refuse a request for flexible working arrangements?
What are reasonable grounds to refuse a request?
An employer may refuse a request for flexible working arrangements on reasonable business grounds. These include the following:
- the new working arrangements would be too costly;
- there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements;
- it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements;
- the new working arrangements would be likely to result in a significant loss in efficiency and productivity; or
- the new working arrangements would be likely to have a significant negative impact on customer service.
The specific circumstances of the employer, including the nature and size of its business, are relevant to whether they have reasonable business grounds for refusing a request. For example, if the employer has only a small number of employees, there may be no capacity to change the working arrangements of other employees to accommodate the request.
When can an employer refuse a request for flexible working arrangements?
An employer may only refuse a request if:
- they have discussed the request with the employee;
- they have genuinely tried to reach an agreement with the employee about making changes to their working arrangements to accommodate their circumstances giving rise to the request;
- they have not reached an agreement with the employee;
- they have had regard to the consequences of the refusal for the employee; and
- the refusal is on reasonable business grounds.
If an employer refuses a request their written response must:
- include details of the reasons for the refusal;
- set out the particular business grounds for refusing the request;
- explain how those grounds apply to the request;
- either:(a) set out the changes (other than the requested change) that the employer would be willing to make to the employee’s working arrangements that would accommodate, to any extent, the circumstances giving rise to the request; or (b) state that there are no such changes; and
- set out the effect of the dispute resolution and arbitration provisions in sections 65B and 65C of the Act (see below).
The Act sets out dispute resolution procedures that apply if a request for flexible working arrangements has been made under the Act and:
- the employer has refused the request; or
- the employer has not provided a written response to a request within 21 days.
The employer and employee must first attempt to resolve the dispute at the workplace level, by discussions between the parties.
If the dispute can’t be resolved at the workplace level, the employer or employee may refer the dispute to the Fair Work Commission.
The Commission must first deal with the dispute by means other than arbitration (unless there are exceptional circumstances). The Commission will usually hold a conciliation, but can also deal with the dispute by mediation, making a recommendation or expressing an opinion.
If the dispute isn’t resolved this way, the Commission can arbitrate the dispute taking into account fairness between the employer and the employee.
There is nothing preventing an employee who doesn’t qualify under the above scheme from making a request for flexible working arrangements. In tandem, there is also nothing stopping the employer from agreeing to the request, but they wouldn’t be obliged to.
Employers should also be mindful of discrimination considerations when considering requests for flexible working arrangements.
Navigating requests for flexible working arrangements can be challenging for employers. If you have received a request or would like to discuss flexible working arrangements further, get in touch to speak to one of our experts today.