From 6 June 2023, employees will be able to access the Fair Work Commission’s Dispute Resolution processes to oversee their employer’s decision regarding requests for flexible work arrangements.

Presently, the Fair Work Act 2009 (Cth) does not allow an employee to challenge their employer’s decision to refuse a flexible working arrangement request (unless the employee’s Modern Award provides them with this right). From 6 June 2023, all employees, irrespective of Award Coverage, will be entitled to make a flexible working arrangement request and have their employer’s decision reviewed by an independent umpire if they meet certain criteria.

When can an Employee make a Flexible Work Arrangement request?

The employee must have completed twelve (12) months of continuous service before making the request. Casual employees must be long-term casuals and have a reasonable expectation of continuing employment [s.65(2)].

Secondly, the employee needs to show they –

  • Have parent and/or carer responsibilities; or
  • Have disability; or
  • Are at least fifty-five years old; or
  • Are experiencing violence from a member of the employee’s family; or
  • Provide care or support to a family member or household, who requires care or support because the member is experiencing violence from the member’s family.

Also, parents with carer responsibilities for a child, returning to work after taking leave after the birth or adoption of the child, may request to work part-time to assist with the employee to care for the child [s.65(1)(b)].

All requests should be in writing [s.65(3)].

An Employer’s obligations

Although the employer still has to provide a written response within 21 days of the request, and a response must state whether the employer grants or refuses the request, the employer has to show that they have discussed the request with the employee and genuinely tried to reach an agreement with the employee. If an agreement has not been reached, the employer must show they have considered the consequences of the refusal to the employee and their refusal is made on reasonable business grounds [s.65(a)].

If refusing a flexible working arrangement request, the employer must show they have reasonable business grounds to do so [s.65(5)(a)].

‘Reasonable business grounds’ include: –

  • The arrangement is too costly for the employer;
  • The employer has no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested;
  • It would be impracticable to change the arrangements of other employees, or recruit new employees to accommodate the new working arrangements;
  • The new arrangements are likely to result in a significant loss of productivity;
  • A significant impact on customer service will occur.

If the employer refuses the request, the response must include detailed reasons for their refusal and set out the employer’s particular business grounds with an explanation or set out other changes the employer could make to accommodate the request. The employee must be informed of their right to take their dispute to FWC (if the employer has refused the request, or 21 days has passed since the employee made the request).

The employee and employer should make some attempt to resolve their dispute [65(2)(b)], otherwise FWC may deal with the dispute by conciliation, mediation or making a recommendation. The employer or employee may appoint representatives to assist them with their matter before the Commission.

FWC’s powers to make Orders about the dispute

If the matter is not resolved at conference, the Commission can Arbitrate the dispute by making any one of the following orders, taking into account fairness between the parties –

  • That the employer had appropriate grounds to refuse the request on reasonable business grounds;
  • That the grounds relied upon by the employer were not reasonable business grounds;
  • If the employer has not responded, or not responded adequately, order that the employer takes further steps to respond;
  • Order that the employer grants the request or makes changes to the employee’s working arrangements to accommodate the request.

A flexible working arrangement request is also likely to constitute a workplace right so that if the employer acts in the way prejudicing the employee’s employment or injures the Employee’s employment (including terminating their employment) because of the request, the Employee will have an action to take against the employer for breach of the General Protection provisions of the Fair Work Act and seek appropriate compensation.

If you require any advice or representation in relation to a flexible working arrangement request, please contact our office.

This article should not be taken as legal advice by any particular party or entity.  If you require any specific advice in relation to circumstances of your case, please contact our office for legal advice.