Under the Fair Work Act 2009, some employees have a right to request "flexible working arrangements". This is one of the National Employment Standards included in the Act.
Flexible working arrangements can include changes to the employee's hours of work, place of work and job structure (e.g. job sharing).
Flexible Working Arrangements
Employees can make a request for a flexible working arrangement 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 aged 55 years or older
- are experiencing violence from a member of their family, or
- provide support or care to a member of their immediate family or their household who requires care or support because that person is experiencing violence from a member of that person's family.
However, an employee cannot make a request unless they have completed at least 12 months of continuous service. An exception is made for casual employees, who must be long term casual employees and have a reasonable expectation of regular, continuing employment.
An employee must make their request in writing and set out the reasons why they are requesting the changes to their employment arrangements.
In addition, from 1 December 2018, all Modern Awards have been varied to include new provisions for flexible working arrangements that will affect all Award covered employees. So, if the employee is covered by an Award, the employer must discuss the request with the employee and try to reach a genuine agreement with the employee. This would involve discussing the needs of the employee, the consequences for the employee if the employer does not make the requested changes, and any reasonable business grounds for refusing the request.
Of course, employees are only able to request flexible working arrangements. An employer can refuse the request if there are reasonable business grounds for doing so. Valid grounds can include, but are not limited to, factors such as the cost to the employer, impracticability or a likely loss of productivity or reduction in the level of customer service.
Employers must give employees a written response within 21 days to advise whether or not their request is accepted. If the employer refuses the request, they must explain the reasons why.
If the employee is covered by an Award, the employer must also state whether there are any changes the employer can offer so as to better accommodate the employee's circumstances.
If an agreement is reached that differs from what the employee originally requested, and the employee is covered by an Award, then the employer must provide a written response setting out the agreed changes.
If an agreement is not reached and the employee is covered by an Award, then the employee or the employer can deal with the disagreement through the dispute resolution process provided for in the Award.
If you are an employer and you receive a request for flexible working arrangements, it is good practice to have a discussion with your employee about their needs. Wherever possible, consider reaching an agreement that balances those needs with the requirements of your business.
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
Liability limited by a scheme approved under Professional Standards Legislation.
For further information contact
Mitchell is the Managing Principal of our law practice.
He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate. For further information, contact Mitchell on his direct line (03) 8561 3318.