Changes to Flexible Working Arrangements

In a post-COVID world, flexible working has become the norm at many organisations. Whether a hybrid approach is taken, working from home full time is still acceptable or an ad hoc flexible working arrangement is in place, it is no longer unusual for workers to carry out their roles away from the office or at hours which suit both them and their employers.

Although employees have had the right to request flexible working arrangements since 2009, many employers were not appropriately reviewing requests. In June 2023, the way flexible working arrangements are formalised will come into effect through the Fair Work Legislation Amendment (Secure Jobs, Better Pay).

What amendments have been made to the Fair Work Legislation? 

The amendments have been made to open lines of communication between employers and employees particularly where dispute resolution is concerned. Other amendments include:

• making it easier for employees to request flexible arrangements;
• mandating the employer’s obligation to respond to employees’ requests with a genuine attempt to reach an agreement and provide valid reasons in case of a refusal; and
• providing employees with an opportunity to seek an appeal and/or engage in a formal dispute resolution process.

Who is able to request a flexible working arrangement?

In line with s 65(1A) of the Fair Work Act, employees who meet the following requirements are eligible to request flexible working arrangements:

• parents and those who have responsibility for the care of a child who is school-aged or younger;
• a pregnant person;
• carers (under the Carer Recognition Act 2010);
• people with disability;
• those who are 55 years of age or older;
• those who are experiencing family or domestic violence; and/or
• those who are providing care or support to an immediate family member or member of their household who is experiencing family or domestic violence.

In addition, employees must have been working for their employers for at least 12 months.

Are casual employees eligible to request flexible working arrangements?

Casual employees are eligible to request flexible working arrangements so long as they have been employed as such on a long-term basis and there is a reasonable expectation that they will continue to be employed on the same basis.

How should an employee make a request for a flexible working arrangement?

An employee must make their request for a flexible working arrangement in writing. They should clearly outline the type of arrangements they are requesting, including how they will differ to their ordinary working arrangements and why they are requesting the changes.

Employers should consider the request promptly and carefully by following the below steps:

1. Discuss the employee’s request with them.
2. Make a genuine effort to reach an agreement with the employee about working their working arrangements, even if they cannot be met exactly as requested.
3. Give consideration to what it could mean for the employee if their request is refused.

The employer’s decision to refuse the request must be done so on ‘reasonable business grounds’, examples of which are below.

• The proposed arrangement will have financial implications.
• The proposed arrangement will have an impact the business’ efficiency, productivity and provision of service.
• The proposed arrangement will require the recruitment of new employees or modification of the working arrangements of other employees.

Whether the employer decides to accept the arrangement or not, the decision must be communicated to the employee in writing within 21 days of the written request being made.

The recent amendments require the employer to provide a thorough response which:

• includes the reasonable business grounds for refusing the request;
• reiterate the employee’s proposed working arrangements and state which changes will be accommodated and which changes will not be made; and
• provide information on the Fair Work Commission’s dispute resolution process.

How should a dispute be resolved if a request for a flexible working arrangement is denied?

In the past, employees have not had any options for dispute resolution if their flexible working request was denied or ignored more than 21 days after it was made. Now, the Fair Work Commission has the power to deal with disputes if they cannot be resolved at the workplace level.

If a dispute remains unresolved after conciliation or mediation has been attempted at the request of the Fair Work Commission, the Commission can then arbitrate the dispute and can make orders, including granting the employee their original request.

Should an employer breach an order made by the Fair Work Commission, they will risk being subject to a penalty in line with s 539 of the Act.

How can employers ensure they are compliant?

Employers should review their current policies and processes around flexible working arrangements and update them by 6 June 2023 to ensure they align with the Fair Work legislation amendments.

If you need assistance navigating the Fair Work Legislation Amendment our employment team can help.