28 June 2023

From 7 June 2023, there are significant changes to the rules about managing employee requests for flexible working arrangements.

Employees can request a flexible working arrangement under the National Employment Standards. Such a request might be to change start or finish times, work patterns or work location (including working from home).

Employers must now follow a specific process when considering employees’ requests for flexible work.

In particular, employers must:

  • discuss the request with the employee;
  • genuinely try to reach agreement about alternative arrangements;
  • if the request cannot be accommodated, provide a written response within 21 days that sets out the particular business grounds relied upon; and
  • state the extent of changes, if any, that can be accommodated, or state that there are no changes.

Employers can refuse a request only on ‘reasonable business grounds’, which include that the new working arrangements requested would be:

  • too costly for the employer;
  • likely to result in significant loss of efficiency or productivity;
  • likely to have a significant negative impact on customer service; or
  • impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee.

The employer’s circumstances, including the size and nature of the enterprise, are relevant when considering ‘reasonable business grounds’.

Importantly, the Fair Work Commission has been given power to deal with disputes about flexible work and can make a range of orders, including granting the request or directing the employer to make other specified changes.

Who can make a flexible working request?

The following employees┬╣ can make a flexible working request (provided they have at least 12 months’ continuous service):

  • parents or carers of school-age or younger children;
  • employees with a disability;
  • employees who are 55 or older; and
  • employees experiencing violence from a family member (or providing care to a family or household member who is experiencing violence).

Additionally, employees returning from parental leave can request to work part time to provide care to their child.

[1] Casual employees can also submit a request in certain circumstances. 

Takeaway for employers

The key takeaway for employers is to ensure that, if a request is refused, the employee is given a written explanation setting out the reasonable business grounds relied on.

As an example:

  • An employee who works on a production line asks to start their day one hour later so they can drop their children to school. The employee can request flexible work arrangements to care for their children.
  • This cannot be accommodated as the employee works as part of a crew of 10 and the timing of the work is set by reference to various deliveries.
  • The employer must give a written response explaining that the proposed arrangement cannot be accommodated because it would be impractical to change the working arrangements of the other production and delivery employees or to recruit a new employee for one hour each day, and that it would result in significant loss of productivity if the employee was absent on the production line for that hour each day.
  • Alternatives (such as a job-sharing arrangement) should be considered and discussed before the request is refused.
This information is intended to provide a general summary only and should not be relied on as a substitute for legal advice.

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