Mastering Flexible Work Requests in your Workplace

Over the past couple of years, significant amendments have been made to the National Employment Standards and Fair Work Act 2009 (FW Act) regarding how flexible work requests must be handled.   

In short, the amendments have involved:  

• expanding the eligibility criteria for who can make a request; 
• imposing new employer obligations when handling an employee’s request; and  
• introducing new dispute resolution provisions that empower the Fair Work Commission to assist in resolving disputes (and in certain circumstances, making orders).  

While the changes have been in effect from 6 June 2023, we are now starting to see the Fair Work Commission issue decisions regarding the new regime for managing these requests.  

These recent FWC decisions highlight the importance of understanding your rights and obligations when it comes to handling flexible work requests and the importance of consistent documentation to ensure compliance with the FW Act and to avoid disputes and potential legal ramifications.  

 

So, what is a flexible work arrangement? 

Under section 65 of the FW Act, certain employees have a right to formally request flexible work arrangements. These provisions apply to all employees covered by the national workplace relations system and cannot be excluded by any award, agreement or contract. However, not every employee is eligible to make requests within the framework set out in the FW Act. 

A flexible work arrangement is a formal agreement between an employer and employee to change their standard working arrangements to accommodate an employee’s commitments outside of work (e.g. child caring obligations).  

Typically, flexible working arrangements will involve changes to an employee’s hours, pattern or location of work. For example, they might enable an employee to work from home, work part-time, or word reduced hours, etc. 

 

Who is eligible to make a request for a flexible work arrangement?  

Employees with 12 months continuous service (including casual employees in certain circumstances) may request flexible working arrangements if they:  

• are a parent, or have responsibly for he 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 55 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.  

For casual employees, they are entitled to make a request only if:  

• they have been working for the same employer regularly and systematically for at least 12 months, and  
• there is a reasonable expectation of continuing employment (on a regular and systematic basis) 

Of course, every employee is able to request changes to their employment arrangements. However, only employees falling within the eligibility criteria set out above are able to make these requests within the framework of the FW Act. This article focuses on requests that are made by eligible employees within that framework.  Where a flexible work request is made by an employee who is not eligible to do so under the FW Act, the following rules won’t apply, and employers are free to deal with that request in the ordinary course of running their business (i.e. it will likely be a matter of discretion for the employer). 

 

Employer obligations   

The recent amendments to the FW Act build on the existing provisions which require employers to discuss the request with the employee and genuinely try to reach agreement before refusing a request. However, there are now additional obligations for employers.  

When an employer receives a flexible work request, you are now required to undertake the following steps:   

 

1. Consider the employee’s request 

First, you need to ensure that the employee’s request is made in writing and that it sets out the details of the request and the reason the employee is seeking the flexible work arrangement. 

You will also need to assess whether the employee is eligible to make the request. If they are not eligible, the following procedural rules will not apply.  

Note: Once you receive an employee request, a 21-day time period kicks in. Employers must provide a written response to all flexible working arrangement requests within 21 days of the request being received.  

If you are satisfied that the eligibility requirements have been met, you will then need to consider whether to grant, or refuse, the request. 

When considering an employee’s request, this should be done on a case-by-case basis, and you might wish to consider the following factors:  

• What are the employee’s key duties? 
• Is there a requirement for these duties to be performed at set times or locations? 
• Who does the employee interact with / what are the team dynamics in the normal course of their work? 
• Why is the employee requesting this new arrangement? 

 

2. Deciding – can the request be accommodated?  

Accepting the request 

If you agree to the employee’s flexibility request, you will need to write to the employee within 21 days to confirm that their request has been accepted.  

 

Refusal of the request 

Alternatively, if you cannot accommodate the employee’s request (in the specific terms that have been requested), you need to: 

• discuss the request with the employee;  
• genuinely try to reach agreement with the employee to see whether you can agree to some other alternative arrangement that might work for both parties; and 
• consider the consequences for the employee if the request is refused.   

An employer can only refuse a request if the refusal is based on reasonable business grounds, which include the following:  

 

3. If refusing, explaining the reasons for refusal 

If, after discussing the request with the employee and exploring potential alternatives, you are still unable to reach agreement (and the request is refused on reasonable business grounds), you will need to communicate the refusal to the employee in writing, including the reasons for the refusal.  

The employer must provide a written response to the employee within 21 days which:  

• includes the reason the request was refused, stating the particular business ground/s for refusal; 
• includes an explanation for how the business grounds apply to the request; 
• set out the changes in the employee’s working arrangements that would accommodate (to any extent) the employee’s circumstances which you would be willing to make OR state that there are no such changes; and  
• explain that the employee can dispute the refusal in the Fair Work Commission, which can review the decision made on a flexible working arrangement request, including by arbitration.  

This means that where a mutually satisfactory arrangement cannot be agreed, there is a risk that the employee will challenge the refusal in the Fair Work Commission, which could lead to the Fair Work Commission imposing an outcome on you. In other words, the FWC has the power to order that you make certain changes if the tribunal forms the view that it is reasonable for you to do so. 

 

Best practice tips for employers  

To help employers effectively manage flexible work requests, we recommend that you:  

• Follow a checklist:  
  • Is the employee eligible to make the request under the FW Act? 
  • Has the employee completed at least 12 months continuous service before making the request?  
  • Have you considered the request? 
  • If you are inclined to decline the request, have you discussed this with the employee and explored potential alternatives that could work for both parties? 
  • Have you responded to the request in writing within 21 days? 
  • If the request is approved, or if an agreement for some alternative arrangement has been reached, have you recorded the agreement in a formal document or otherwise in writing? 
• Keep consistent and proper documentation. This is not only important to ensure you can demonstrate compliance with the FW Act but also to keep track of requests and responses, and to rely on in the event of disputes.   
• Develop a clear policy (and update it regularly). 
• Keep open communication with employees while managing requests.  
• Ensure managers / leaders are trained and equipped to handle requests appropriately. Given the process for managing requests is more prescriptive, you might wish to have a designated person or team assigned to handling requests.  

 

Need Assistance?  

To assist your organisation in handling requests, My Business Workplace members have access to a range of template documents which include template letters for responding to employee requests. 

ABLA has also designed The Flexible Work Arrangements toolkit, which contains a checklist to review requests and template letters to use in your response to employees. This toolkit was designed to make the process simple for your team and to assist you in meeting your employer obligations under the Fair Work Act.

If you require any further advice in respect of this matter, please feel free to get in touch with one of the team at Australian Business Lawyers & Advisors.