Co-authored by Hayat Yassine

Post-COVID, flexible workplace arrangements have become more popular with both employees and organisations.

The right to request flexible working arrangements in its current form has been in place since 2009. However, in many cases that right was not being appropriately observed by employers and as such, was consequently of little value to many employees.

One of the main themes of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 is flexible working arrangements.

What amendments have been made?  

The flexibility amendments, which commence on 6 June 2023, encourage transparent communication between employers and employees, and opportunities for appeal and remedy. In particular, the amendments:

1. expand the eligibility of employees to make requests for flexible arrangements;
2. impose an obligation on employers to respond to requests appropriately, by discussing the request, genuinely trying to reach an agreement and, in the case of a refusal, providing valid reasons to the employee; and,
3. most significantly, provide employees with the opportunity to appeal an employer’s decision or failure to respond to a request.

Who can make a request under these new amendments?

Under s 65(1A) of the Act, employees 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.

To make a request, employees (other than casual employees) must have worked with the same employer for a least 12-months.

What about casual employees?

For casual employees, they must be a long-term casual employee and have a reasonable expectation that they will continue employment with the employer on a regular and systematic basis.

How do employees request flexible working arrangements?

An employee must submit requests in writing and clearly explain what arrangements they are requesting, providing details of the changes sought and reasons for these changes.

What should employers do with a request?

Employers must promptly and thoroughly consider the request. In the first instance, this means the following:

• discussing the request with the employee;
• genuinely trying to reach an agreement with the employee about working arrangements; and
• having regard to the consequences for the employee if the request is refused.

Following this, the employer may accept the request, suggest other changes that could accommodate the employee’s needs or refuse the request. If the employer refuses to accept the request, this decision must be on ‘reasonable business grounds’. Examples provided in the legislation include:

• the financial implications of the arrangements requested;
• 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.

Reasonable business grounds will ultimately be informed by the nature of the business and workplace.

Responding to request in writing

The employer’s acceptance or refusal of the request must be communicated in writing within 21-days of the employee’s written request.

The employer’s written response requires a higher level of detail and is far more comprehensive than the current requirement. The response is required to:

• 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.

Dispute resolution

Previously, employees would have no avenue of review if a request was denied or ignored after 21-days. The FWC is now empowered to deal with disputes where a solution cannot be reached at a workplace level.

The FWC must first attempt to achieve resolution through conciliation or mediation. Only when the dispute remains unresolved, will the FWC arbitrate the dispute and make orders granting the request.

An employer who breaches an order made by the FWC will risk the imposition of a civil penalty under s 539 of the Act.

Next steps

It is important that employers consider the changes and review their current practices for responding to flexible working arrangement requests in accordance with the Act. Employers will need to review and update their flexible work policies to ensure they are consistent with the amendment before 6 June 2023.

Employers can refer to the Fair Work Ombudsman’s Flexible Working arrangements guide for more information on best practices.

If you have any questions regarding this article, require assistance with your own employment law matter, please Coleman Greig’s Employment Law team.

_{Coleman Greig Lawyers provides this material as general information only in summary form on legal topics current at the time of first publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters.}