Q. Our company is conducting a review of our policies and procedures and are currently looking at the request for flexible working arrangements provisions under the Fair Work Act. It states an employee with more than 12 months service is able to request a flexible working arrangement if they are a parent of a child 'school age or under'. We are not sure what this term means. 

Our understanding is that school age is the age that a person commences school in accordance with the relevant state or territory legislation. For example, if the age in Victoria is five, does that mean only parents of children 5 years or younger have a legal right to request a flexible working arrangement, or is 'school age' taken more generally and means a child of an age to be at school? If so, does that mean primary school or secondary school or both? 


A. The Fair Work Act 2009 (Cth) gives eligible employees the right to request flexible working arrangements in certain circumstances, including where they are the parent of, or have responsibility for the care of, a child who is of school age or younger.

 

What does “school age” mean?

The Fair Work Act defines“school age” as the age at which a child is required by the law of the state or territory in which they live to attend school.

Accordingly, the entitlement is not limited to parents of children who are about to commence school. Rather, it extends to eligible employees who are the parent of, or have responsibility for the care of, a child who is of school age or younger.

The legislation does not distinguish between primary and secondary school students for the purposes of eligibility. The relevant consideration is whether the employee is the parent of, or has responsibility for the care of, a child who is of school age or younger.

 

Responsibility for the care of a child

The right to request flexible working arrangements is not limited to parents. It also applies to employees who have responsibility for the care of a child, which may include arrangements such as guardianship, foster care and other parent-like caring relationships. 

 

Who can request flexible working arrangements?

Subject to the service requirements discussed below, an employee may request flexible working arrangements if they require flexibility because they:

  • are pregnant;

  • are the parent of, or have responsibility for the care of, a child who is of school age or younger;

  • are a carer within the meaning of the Carer Recognition Act 2010;

  • have a disability;

  • are 55 years of age or older;

  • are experiencing family and domestic violence; or

  • provide care or support to an immediate family member or household member who is experiencing family and domestic violence.

The Act also confirms that an employee returning to work after the birth or adoption of a child may request part-time work to assist in caring for that child.

 

Eligible employees

Full-time and part-time employees are eligible to make a request if they have completed at least 12 months of continuous service with their employer immediately before making the request. Casual employees may also be eligible where they have worked on a regular and systematic basis for at least 12 months and have a reasonable expectation of continuing employment. 

Making a request
A request for flexible working arrangements must:

  • be made in writing;

  • set out the changes sought; and

  • explain the reasons for the requested change.

Examples of flexible working arrangements include:

  • changes to start and finish times;

  • reduced or altered hours of work;

  • job sharing arrangements;

  • changes to work patterns; and

  • working from home or another location.

 

Employer obligations

Employers must respond to a request in writing within 21 days. Before refusing a request, employers must discuss the request with the employee, genuinely try to reach agreement, and consider whether alternative working arrangements could accommodate the employee's circumstances

An employer may only refuse a request where:

  • the refusal is based on reasonable business grounds; and

  • the employer has complied with the consultation and response requirements under the Fair Work Act

 

What is considered reasonable business grounds?

Examples of reasonable business grounds include where:

  • the proposed arrangements would be too costly;

  • there is no capacity to change the working arrangements of other employees;

  • it would be impractical to reorganise work or recruit additional staff;

  • the arrangements would likely result in a significant loss of efficiency or productivity; or

  • the arrangements would have a significant negative impact on customer service.

 

Disputes about flexible working arrangements

If a request cannot be resolved at the workplace level, an employee may apply to the Fair Work Commission for assistance. The Commission has powers to deal with disputes relating to flexible working arrangement requests, including where there is disagreement about whether an employer has complied with the requirements of the Fair Work Act or whether a refusal is based on reasonable business grounds.

 

Bottom line

Provided the employee satisfies the relevant service requirements, a request for flexible working arrangements may be made where the employee is the parent of, or has responsibility for the care of, a child who is of school age or younger. “School age” refers to the age at which a child is required under the law of the relevant state or territory to attend school, rather than merely the age at which a child commences school.