One of the many lessons learnt from the COVID-19 pandemic is the importance of flexible work arrangements. Whether shifting to working from home conditions to implementing job-sharing arrangements, employers have had to remain adaptable to their workers’ needs. Although anyone can request a flexible work arrangement, certain employees have a legal entitlement under the Fair Work Act to make a request. To provide you with an outline of flexible work arrangements, this article explains:
- what flexible working arrangements are, and their benefits;
- who is entitled to request flexible working arrangements; and
- how you should respond to a request for flexible work.
Benefits of a Flexible Working Arrangement
As suggested in its name, a flexible working arrangement will differ from business to business. More broadly, flexible work arrangements are agreements between you as an employer and your employees to change standard working arrangements. A flexible work arrangement can include:
- flexible start and finish times;
- compressed working hours;
- change to a part-time or casual role;
- job-sharing arrangements;
- working from home or a different location;
- taking time off in lieu of overtime payments; and
- an increase or decrease in work hours.
You may consider flexible arrangements mutually beneficial for both you and your employee. For example, your employee might gain greater job satisfaction, lower work-related stress and a healthier work-life balance due to flexible work options. This is because they might have more time to tend to family responsibilities and care for themselves on top of managing work.
By putting in place flexible work arrangements, you might also experience:
- lower levels of absenteeism;
- increased productivity from staff; and
- more competitive job offerings to attract and retain skilled staff.
In any event, flexible work arrangements should suit both your employee and your work environment.
Who is Entitled to Make a Request?
Anyone can request a flexible work arrangement. However, some employees are legally entitled to make a request. These include:
- permanent employees who have worked with you for at least 12 months; and
- regular and systematic casual employees who have worked with you for at least 12 months and have a reasonable expectation of continuing employment on a regular basis.
In addition, the request from these workers must be because they are a:
- person 55 or older;
- parent of a young child;
- carer;
- person with disability;
- person experiencing family and domestic violence; or
- person who is providing support to someone experiencing family and domestic violence.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
How Should I Respond to a Request?
In order to seek protection under the Fair Work Act, an employee must make their request for flexible working conditions in writing. However, it is not unusual for employees to discuss flexible working with their employers prior to submitting their requests. This way, both you and your employee can negotiate a mutually beneficial arrangement.
Once you receive a request in writing, you must provide a written response within 21 days. Your response should outline whether you approve or refuse the request.
When you receive a request for flexible working arrangements, you should remain open to the request and engage in a genuine discussion with your employee about their proposed changes. This is because a flexible work arrangement that suits both you and your employee can foster a happy and productive work environment. However, if you decide to refuse the request, you must do so on ‘reasonable business grounds.’ These valid grounds include if:
- the costs for the arrangement are potentially onerous;
- your business lacks the capacity to accommodate the request;
- it would be impractical to change the working conditions of others to accommodate the request; or
- the request is likely to result in loss of productivity or have a negative impact on the business.
Ultimately, you are not obliged to agree to a request for flexible working arrangements. However, if you fail to provide a reasonable excuse for refusing the request, this could give rise to an employment dispute. In addition, you may be bound by specific state and territory legislation relating to requests for flexible work. For example, the Equal Opportunity Act in Victoria prohibits employers from unreasonably refusing to accommodate an employee’s responsibilities as a parent or carer.
Recent Changes to Flexible Work Arrangements Law
Further, recent changes to the law under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 grant the Fair Work Commission new powers to deal with disputes regarding flexible work arrangements.
In short, if you fail to respond to an employee’s request for flexible work arrangements or unreasonably refuse a request, the affected employee may seek dispute resolution through the Commission. As a result, the Commission can initiate mediation or arbitration.
This may be a time-consuming and costly exercise if you need to engage legal representation. Therefore, it is in your best interest to ensure that you genuinely consider all requests for flexible work arrangements from your employees.
Key Takeaways
A flexible work arrangement is an agreement between you and an employee to change your employee’s standard working arrangements. Typically, an employee will negotiate the conditions of their employment, followed by a written agreement of their request. Once you receive the request, you must provide a written response within 21 days. If you decide to refuse the request, you must do so on reasonable business grounds and provide detailed reasons to the employee of the reason for the refusal.
If you need help responding to a request for a flexible working arrangement, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
You must respond to a written request for flexible working arrangements within 21 days of receiving the request.
If you refuse a request for flexible work, you must have a valid reason to do so. A reasonable business ground includes a wide range of valid reasons, from the cost of the arrangement being too high to the request having a negative impact on your business.
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