Changes to the Fair Work Act will enhance the right to request flexible working arrangements, including by:
- broadening who is eligible to request flexibility;
- requiring employers to genuinely try and reach an agreement;
- requiring employers to provide more detail in writing of their reasons for refusing a request; and
- giving employees a right to apply to the Fair Work Commission to review an employer’s decision or failure to respond to a request.
The changes are effective from 6 June 2023.
Who Will be Eligible?
Permanent employees who have worked with the same employer for a least 12 months can request flexible working arrangements if 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 experiencing family or domestic violence; or
- provide care or support to a member of their household or immediate family who requires care and support because of family or domestic violence.
Also, an employee who is the parent of a child or has responsibility for the care of a child and is returning to work after taking parental or adoption leave, may request to return to work on a part-time basis to help them care for the child.
Casual employees who meet any of those criteria can also request flexible working arrangements if they have worked regularly and systematically for their employer for more than 12 months.
Making a Request
The employee must make their request in writing, giving details of the changes sought and their reasons for the changes.
Actioning the Request
Employers must promptly and thoroughly consider the request by:
- discussing the request with the employee;
- genuinely trying to reach an agreement with the employee; and
- considering the consequences for the employee if the request is refused.
The employer may then:
- accept the request;
- suggest other changes that could accommodate the employee’s needs; or
- refuse the request.
Responding to the Request
The employer must communicate their acceptance or refusal in writing within 21-days of the employee’s written request.
Refusing a Request
An employer’s refusal to accept the request must be on ‘reasonable business grounds’ such as:
- the financial implications of the requested arrangements;
- the impact of the requested arrangements on efficiency, productivity, and customer service;
- the practicality of changing the working arrangements of other employees, or recruiting new employees, to accommodate the changes.
The employer’s written response refusing a request must:
- include particular business grounds for refusing the request;
- explain how those business grounds apply to the request;
- set out the changes in working arrangements that would accommodate the employee or state that there are no such changes; and
- contain information about the employee’s right to apply to the Fair Work Commission (FWC) to have the dispute resolved by way of conciliation, mediation, or arbitration.
Reviewing a Request
Previously, employees had no avenue of review if a request was denied or ignored after 21 days.
A disappointed employee may apply to the Fair Work Commission if their request is not responded to or is refused.
The FWC must first attempt to achieve resolution through conciliation (mediation). If the dispute remains unresolved the FWC can then hear the dispute and make orders.
An employer that breaches an order will be at risk of penalty for contravening the Act.
Implications
Employees should understand the eligibility requirements to make a request, make their request in writing, and include the information and detail required by the Act.
Employers should review their current practices for responding to flexible working arrangement requests, and also review and update their flexible work policies before 6 June 2023.
Employers that have reasonable business grounds to dispute a request should be careful to follow the Act’s requirements for engaging with the employee’s request and responding to it.
The changes do not remove the employer’s right to refuse a request on reasonable business grounds, and our next article will explain a recent decision by the Queensland Industrial Relations Commission refusing a police prosecutor’s request for flexibility that, after June 2023, would probably be decided the same way in the Fair Work Commission.
Some more information is available here or you can book online for an initial no-obligation chat about reviewing an employment contract or contractor agreement.