Workplace flexibility is a crucial factor in driving strong organisational performance and encouraging employee retention.

In today’s workplace climate, considering how to best approach flexibility is critical to ensuring long-term employee wellbeing and operational success for the business.

Who is eligible to request a flexible working arrangement?

According to the National Employment Standards, certain groups of employees can request flexible working arrangements.

These include:
•    employees with caring responsibilities, in accordance with the Carer Recognition Act 2010
•    parents or guardians with the responsibility of caring for a child who is school age or younger
•    employees with a disability
•    employees who are 55 years or older
•    employees who are pregnant
•    employees who are experiencing family violence or who are providing care or support to a family or household member who is experiencing family violence.

To be eligible to make a request, employees in these groups must have completed at least 12 months of continuous service.

Long-term casual employees with at least 12 months of continuous employment and a reasonable expectation of continuing employment are also eligible to make such requests, provided they meet at least one of the criteria.

Examples of flexible working arrangements

Flexible working arrangements may include:
•    changes in hours of work (eg, reductions or increases in hours worked or changes to start or finish times)
•    changes in patterns of work (eg, working extra hours for taking time off)
•    changes in location of work (eg, working from home or another location)
•    requests for part-time employment or job share arrangements
•    arrangements for time off in lieu of being paid overtime payments.

This isn’t an exhaustive list. Negotiating other flexible arrangements is possible as long as they are mutually suitable for both the employee and the employer.

It may depend on the type of workplace, the scale of the business and the employee’s role.

Flexible work requests and responses

Employees must submit their request for a flexible working arrangement in writing, providing details of the desired changes and the reasons behind them.

Employers are required to provide a written response within 21 days, indicating whether the request is granted or refused.

Before issuing a written response, however, employers should note that the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, passed in December last year, introduced new obligations within the National Employment Standards.

These changes, which took effect on 6 June 2023, require employers to first engage in genuine discussions with the employee about the proposed request and to explore alternative agreements if the initial request is not feasible as well as to consider the consequences of refusal from the perspective of the employee.

If the employer declines the request, they must provide a written response outlining the reasonable business grounds for refusal, any alternative changes they are willing to consider and information on how to refer the dispute to the Fair Work Commission (FWC).

All requests for flexible working arrangements must be seriously considered by the employer but may be refused where reasonable business grounds exist.

What are reasonable business grounds?

While the Fair Work Act 2009 does not define ‘reasonable business grounds’, employers should consider a non-exhaustive list of relevant factors including:
•    the impairment to the workplace and the employer’s business on approving the request, including the financial impact of doing so and the impact on efficiency, productivity and customer service
•    the difficulty of reorganising or an inability to reorganise work among existing staff
•    an inability to recruit a replacement employee or the practicality or otherwise of the arrangements that may need to be put in place to accommodate the employee’s request.

Can a refusal of a request be challenged?

It is important to be aware that there is no obligation for an employer to agree to a request for flexible working arrangements.

However, recent changes to the Fair Work Act 2009 empower the FWC, upon application by either party, to deal with a dispute about flexible working arrangements if the dispute concerning an employer’s decision (or failure to respond within 21 days) cannot be resolved at the workplace level.

If this were to occur, the FWC would first attempt to resolve the dispute by means other than arbitration, such as:
•    conciliation
•    mediation
•    making a recommendation or expressing an opinion.

If it still cannot be resolved, the FWC might arbitrate the dispute and make a mandatory order concerning the matter.

This might stipulate whether or not the request is considered to have been refused on reasonable business grounds.

The FWC can also commence court proceedings for alleged breaches in relation to flexible working arrangements.

In summary

While flexible working arrangements have been in existence for a considerable period of time, employers should be mindful of recent amendments designed to expand the scope of these provisions to encompass vulnerable demographics.

These amendments also aim to offer additional avenues for employees to seek resolution in the event of a dispute.

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Disclaimer: The material contained in this publication is general comment and is not intended as advice on any particular matter, nor should it be relied on as a substitute for legal or professional advice. Wentworth Advantage Pty Ltd expressly disclaim all and any liability to any persons whatsoever in respect of anything done or omitted to be done by any such person in reliance whether in whole or in part upon any of the contents of this publication.
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