This article forms part of our series of blogs covering the National Employment Standards (NES). These are the minimum terms of employment that apply to those Australian workers who are part of the National Workplace Relations System (which is the vast majority of workers, refer here for more details), regardless of whether or not they are covered by an Award.
Whilst employers and employees can agree to terms that supplement the NES, they cannot provide for conditions that are less than the NES or the national minimum wage. The NES cannot be excluded, modified, or reduced; they form part of the “safety net” that covers the majority of Australian workers.
What are Flexible Working Arrangements?
The NES provides eligible employees with the right to request flexible working arrangements. These requests must be made in writing and can only be refused on “reasonable business grounds”, and after consultation with the eligible employee.
Who is eligible to request flexible working arrangements?
Under the NES, employees have a right to request flexible working arrangements IF they have worked for the same employer for at least 12 months AND fall into one of the following categories:
- Are a parent or have responsibility for the care of a child of school age or younger
- Are a carer (as defined in the Carer Recognition Act 2010)
- Are pregnant
- Have a disability
- Are 55 or older
- Are experiencing family or domestic violence
- Provide care or support to a member of their household or immediate family who is experiencing family or domestic violence
Casual employees are also eligible to make requests, provided they have been working regularly and systematically for at least 12 months and have a reasonable expectation of continuing employment on that basis.
Note that an employee who does not meet the above criteria to make a formal request for flexible working arrangements under the terms of the NES (and so is not an “eligible employee”), may still make a request of their employer, and their employer may still consider it, though the employer in this case will not be bound by the obligations outlined below (including, for example, the obligation to consult, respond within 21 days, refuse only on reasonable business grounds etc…).
What types of changes can be requested?
Common types of flexible working arrangements include:
- Changes to start and finish times
- Compressed hours (e.g. working full-time hours over fewer days)
- Job sharing
- Working from home, or another location
- Part-time work instead of full-time
These arrangements can be ongoing or temporary, depending on the employee’s circumstances and the operational needs of the business.
How must employers respond to a formal request from an eligible employee?
Employers must respond in writing to a request within 21 days. They may only refuse a request on reasonable business grounds, which might include, for example:
- the requested arrangement is too costly
- other employees’ working arrangements cannot be changed to accommodate the request
- it would be impractical to change the working arrangements of other employees or recruit new staff
- the request would result in a significant loss of productivity or negative impact on customer service.
Factors such as the nature and size of the business may be relevant in considering a request.
A request may also only be refused if the employer has consulted with the employee in relation to the request, has genuinely explored alternatives to the request AND considered the impact of refusing the request.
If a request by an eligible employee is ultimately refused, there are specific matters that must be addressed in the employer’s response, including:
- the reasons for the refusal including an explanation of the grounds for refusing and how they apply to the request
- other changes the employer is willing to make or a statement that there aren’t any changes to be made, and
- information for the employee about getting help from the Fair Work Commission for disputes about flexible working arrangements.
If the employer and employee are unable to resolve a dispute about flexible working arrangements, they can apply to the Fair Work Commission for help. If, after mediation, there isn’t a resolution, the Commission can arbitrate the dispute. This is a more formal process where employers and employees can present evidence and arguments. The Commission makes binding orders that employees and employers need to comply with.
A word of warning
It’s important to note that disputes over flexible working arrangements also arise when the process outlined under the NES (in relation to eligible employees) is not followed correctly.
In a recent case, an employer’s refusal of a request AND their failure to provide a timely written response resulted in an appeal to the Fair Work Commission. The Commission ruled that even though the business reasons for refusal were sound, procedural issues, including the employer’s late response, inadequate documentation and failure to outline business grounds for refusal, constituted non-compliance under the NES. As a result, the employee’s request was granted by the Commission.
This case underscores the importance of adhering strictly to the mandated process and highlights the repercussions of failing to meet these obligations.
Best practices for employers
We recommend the following best practices when dealing with requests for flexible working arrangements:
- Ensure managers understand their obligations when a Flexible Work Request is made
- Have a policy in place, and ideally designate one person in the organisation responsible for ensuring that procedural requirements are followed
- Acknowledge and assess requests promptly (and certainly within the mandated 21 day period)
- Keep communication open and respectful, and genuinely consult with the employee and consider alternatives
- Document all discussions and decisions (and if refusing a request from an eligible employee, ensure your formal refusal meets the specific requirements of the legislation)
- Seek professional support if required
- Consider trial periods for new arrangements
- Review arrangements periodically to ensure they continue to meet the needs of both parties.
For more information, visit the Fair Work Ombudsman’s page on Flexible Working Arrangements: https://www.fairwork.gov.au/employment-conditions/flexibility-in-the-workplace/flexible-working-arrangements
As always, we’re here to help! If you need assistance managing flexible working arrangements or have questions about your obligations and rights as an employer, please get in touch!
This article provides general information which we believe to be correct at the time of posting. It is a summary and must not be considered complete, professional or legal advice. If you’re an employer and need support that takes into account your particular circumstances, please contact us directly.
