The National Employment Standards (‘NES’), as set out in the Fair Work Act 2009 (the ‘Act’), provide certain employees the right to request flexible working arrangements.
From 6 June 2023, significant amendments will be been made to the flexible working arrangement provisions in the NES due to the Fair Work Legislation Amendments (Secure Jobs, Better Pay) Act 2022.
The amendments to the NES will:
- Expand the circumstances in which an employee may make a request
- Increase employer’s obligations to genuinely try to accommodate a request
- Provide for a new a dispute process in the Fair Work Commission
Employers will need to be familiar with new flexible working arrangement provisions, as set out below, and review their current practices to ensure they are meeting their new obligations under the Act.
Who can make a request?
Section 65 of the Act provides that an employee, who has completed 12 months’ continuous service with an employment may request a change in their working arrangement 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 violence from a member of the employee’s family
- provide care or support to a member of their household or immediate family who requires care or support because that person is experiencing violence form their family
- are, or a member of their immediate family or household, experiencing family and domestic violence
- are pregnant
Casual employees can make a request if they have been working for the same employer regularly and systematically for at least 12 months, and there’s a reasonable expectation of continuing work on a regular and systematic basis.
Requests for flexible working arrangements
An employee’s flexible work request must be:
- in writing;
- explain what changes are being asked for; and
- explain the reasons for the requested change.
The NES provides examples of the types of changes in working arrangements which an eligible employee may request. For example, changes in hours of work, changes in patterns of work and changes in location of work.
Responding to requests
The amendments introduce a new section 65A, providing a more detailed procedure for how employers must respond to requests for flexible working arrangements.
Employers are still required to respond to requests within 21 days. The new section 65A sets out what must be done in that 21 days, which can be:
- Accept the request;
- The employer and employee may discuss the request and reach a different agreement then what the employee originally requested; or
- Refuse the request.
Further information about option 2 and 3 are provided below.
Reaching a Different Agreement
If after a discussion with the employee where a different agreement has been reached between the parties, then the employer must set out the agreed change to the request and implement it.
Refusal of a Request
The new process for refusing a request first requires employers to discuss the request with the employee and make genuine attempts to reach an agreement with the employee to make changes to the employee’s working arrangements to accommodate the reason for the request.
After this step, employers can only refuse the request if:
- The employer and employee could not reach an agreement;
- The employer had regard to the consequences of the refusal for the employee; or
- The refusal is on reasonable business grounds.
Communicating reasons for refusal
If an employer refuses the request, a written response must be provided that specifies the reasons for the decision. This must include the business ground on which the request was refused and how those grounds apply to the employee’s request.
The amendments now require employers to set out that the employee has a right to challenge the refusal in the Fair Work Commission.
Challenging the refusal
Previously, employees have no further avenue to pursue if they wished to dispute their employer’s refusal.
From 6 June 2023, the Fair Work Commission (FWC) is now empowered to resolve disputes about requests for flexible working arrangements, where:
- The dispute cannot be resolved in the workplace;
- The employer did not respond to the request within 21 days;
- The employer did not give the employee a written respond; or
- The employer has refused the request and the employee says reasonable business grounds do not exist.
If a party to a dispute refers the dispute to the FWC, the FWC is required to deal with it by means other than arbitration (such as conciliation, mediation, making a recommendation or express an opinion). If the dispute remains unresolved, the FWC may then deal with the dispute by arbitration.
The FWC can make the following orders:
- If the employer did not respond in writing – an order that the employer refused the request
- If the employer refused the request – an order about whether the grounds should be treated as reasonable business ground
- If the employer has not requested or not adequately responded – an order that the employer take further action the FWC considers appropriate
If the FWC is satisfied that there is no reasonable prospects of the dispute being resolved, the FWC can:
- Order the employer to grant the employee’s original request; or
- Order the employer to make changes to the employee’s working arrangements to accommodate the employee’s circumstances.
If an employer refuses to implement orders of the FWC, a civil remedy is available to an employee under the Act.