Any employee can ask for flexible working arrangements, although employers only have a legal obligation to respond to a request for a flexible working arrangement where an employee has at least 12 months continuous service and (only) if they:

  • are the parent, or have responsibility for the care, of a child who is of school age or younger;
  • are a carer (within the meaning of the Carer Recognition Act 2010);
  • have a disability;
  • are 55 or older;
  • are experiencing violence from a member of their family; or
  • provide care or support to a member of their immediate family or household, who requires care or support because they are experiencing violence from their family.

What kind of arrangements can the request cover?

An employee’s request must be in writing and must state what they want changed and why.

Flexible working arrangements include:

  • changing hours of work (eg. working less hours or changing start or finish times);
  • changing patterns of work (eg. working ‘split shifts’ or job sharing);
  • changing the place of work (eg. working from home).

Do I have to respond?

Yes.  You must respond in writing to the employee’s request within 21 days.  The response needs to state whether the request is granted or refused. If the request is refused you must include the reasons for the refusal in your response.

What if I don’t agree with the request?

Flexible working arrangements can be good for everyone, though parties often don’t agree on the details when a request is made.  You are not obliged to agree to the request as you can reject it on reasonable business grounds, though it is good business practice to try to be flexible with your employees wherever possible – don’t just assert your authority for the sake of it.

Although there is no requirement for an employer to agree to a request for flexible working arrangements, the Fair Work Act 2009 empowers the Fair Work Commission or some other person to deal with a dispute about whether an employer had reasonable business grounds for refusing a request. This generally only happens if the parties to the dispute have agreed in an employment contract, enterprise agreement or other written agreement for that to occur.

Do you have “reasonable business grounds” for refusing a request?

Recent amendments to the Fair Work Act set out a non-exhaustive list of what may constitute reasonable business grounds for refusing a request. They include:

  • the excessive cost of accommodating the request;
  • that there is no capacity to reorganise work arrangements of other employees to accommodate the request;
  • the impracticality of any arrangements that would need to be put in place to accommodate the request, including the need to recruit replacement staff;
  • that there would be a significant loss of efficiency or productivity;
  • that there would be a significant negative impact on customer service.

Also take note:  Employees may also be able to seek remedies under other federal or state laws such as anti-discrimination legislation which prohibits unlawful discrimination on the ground of family or carer’s responsibilities.  If you are considering rejecting a request, then you may need to seek legal advice so that you take steps to minimise your potential exposure.

Lachlan McKnight

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