Flexible Working Arrangements: What Employers Need to Know
What Are Flexible Working Arrangements?
A flexible working arrangement is any agreed change to an employee’s ordinary working arrangements. Examples include:
- Working from home or hybrid work arrangements
- Changes to start and finish times
- Part-time work
- Split shifts
- Job sharing.
Flexible work arrangements can help employees balance work and personal responsibilities, such as caring responsibilities, while allowing employers to attract and retain talented staff.
Which Employees Can Request Flexible Work?
Under the National Employment Standards (NES), full-time and part-time employees who have worked with the same employer for at least 12 months’ may request flexible working arrangements 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)
- are a person with a disability
- are aged 55 years or older
- are pregnant
- are experiencing family and domestic violence, or
- provide care or support to an immediate family or household member who is experiencing family and domestic violence.
Long-term casual employees may also be eligible if they have worked regularly and systematically for at least 12 months and have a reasonable expectation of continuing employment and meet one of the above criteria (such as being a person with a disability, being a carer or pregnant).
Employer Obligations
When an eligible employee submits a request, employers cannot simply accept or reject it without consideration.
Employers must:
- Discuss the request with the employee.
- Genuinely consider the request.
- Attempt to reach an agreement where possible.
- Provide a written response within 21 days.
- If refusing the request, provide reasons and explain the reasonable business grounds relied upon.
What Are Reasonable Business Grounds?
An employer may refuse a request only if there are reasonable business grounds for doing so.
Examples may include:
- the requested arrangements are too costly
- other employees’ working arrangements can’t be changed to accommodate the request
- the request is likely to result in a significant loss in efficiency or productivity
- the request would have a significant negative impact on customer service.
However, employers should ensure they have evidence to support any refusal. A preference for employees to be physically present in the workplace will not necessarily be sufficient. Each request should be assessed on its own circumstances.
Practical Tips for Employers
Access Fair Work Ombudsman's Resources
The Fair Work Ombudsman has quick, useful resources for employers about requests for flexible working arrangements.
They are:
- a free and short online Workplace flexibility online course (under 25 minutes)
- the Fair Work Ombudsman’s Flexible Working Arrangements Best Practice Guide.
Assess Each Request Individually
Avoid a “one-size-fits-all” approach. Consider:
- the employee’s circumstances
- the inherent requirements of their position
- operational impacts
- available alternatives
Consider Trial Arrangements
Where uncertainty exists, a temporary trial can be an effective way to assess whether a proposed arrangement is workable for both parties.
Document the Process
Maintain records of:
- the employee’s request
- discussions and consultations
- any agreed arrangements
- reasons for approval or refusal
Good documentation can be critical if a dispute later arises.
Writing A Refusal Response
When an employer refuses a request for a flexible working arrangement, the written response needs to include:
- 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
- information about getting help from the Fair Work Commission for disputes about flexible working arrangements.
Lodging a Dispute with the Fair Work Commission
If an employer and employee have a dispute about a flexible working arrangement, and cannot resolve it, they can apply to the Fair Work Commission for help.
The Fair Work Commission will usually attempt to resolve the dispute using conciliation or mediation first. If the dispute is not resolved, the Fair Work Commission can arbitrate the dispute, and can make binding orders.
Need Advice?
If your organisation is dealing with a complex flexible work request, a dispute regarding a flexible work request, or a Fair Work Commission application, obtaining early legal advice can help minimise risk and ensure compliance with the Fair Work Act.
HintonFlynn Legal advises employers, businesses and HR professionals on workplace flexibility, employee relations and Fair Work Act compliance in NSW and across Australia.