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Flexibility Policy

Version 1.2 Updated 7 Jul 2023
Policy Manage

Who can use this policy
This policy can be used by all employers.

Commentary

This policy assists subscribers’ in considering requests from employees for flexible working arrangements and in meeting their legal obligations under the Fair Work Act 2009 (Cth) (‘FW Act) in responding to requests for eligible employees.

The commentary that follows is not intended to be comprehensive and does not address all legal issues that should be considered and addressed in dealing with requests for flexible working arrangements. Employers in Victoria are also subject to additional obligations (see below).

Flexibility under the Fair Work Act

Under the Fair Work Act, certain employees have a right to formally request flexible work arrangements and employers who receive such requests required to consider them and respond in accordance with certain requirements under the Fair Work Act including responding in writing within 21 days of receiving a request

Employers may still consider requests from all other employees (employees not legally entitled to make a formal flexible working arrangement request) to change their working arrangements. However employers are not legally required to comply with the Fair Work Act requirements when considering such a request.

‘Eligible employees’ entitled to make a formal flexible working arrangement request

Employers who are covered by the Fair Work Act 2009 (Cth) (‘the FW Act’) are required to consider any requests for flexible work arrangements by employees in the following categories:
(a) are pregnant;
(b) employees 55 years of age or older;
(b) an employee with a disability;
(c) an employee who is a carer (i.e. an individual who provides personal care, support and assistance to another individual who needs it because that other individual has a disability, medical condition, metal illness or is frail and aged (Carer Recognition Act 2010 (Cth));
(d) an employee who is the parent of, or has the responsibility of caring for, a child who is of school age or younger;
(e) an employee who is experiencing family and domestic violence;
(f) an employee who provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family.

Such employees are eligible to make a a flexible working arrangement request pursuant to the FW Act if:

  • for any employee, other than a casual, the employee has completed at least 12 months of continuous service with the employer immediately before making the request; or
  • for a casual employee, the employee has been employed on a regular and systematic basis for a sequence of periods of employment of at least 12 months immediately before making the requestand they have a reasonable expectation of continuing employment with the employer on a regular and systematic basis.


If an employer is unsure whether an employee is entitled to make a request under the FW Act, it should seek specific advice on the issue.

Any request by an employee for a flexible working arrangement must be submitted in writing to the employer. It is recommended to refer to the template Request for Flexible Working Arrangement form (click here for more information on this) in the template policy (see Submitting a Request section when creating the template policy).

Responding to Requests from ‘eligible employees’

Under changes to the Fair Work Act which commenced in June 2023, there are now strict requirements on employers when considering and responding to flexible working arrangement requests from ‘eligible employees’.  For example, any formal request for flexible working arrangements under the FW Act from an eligible employee must be responded to, in writing, within 21 days. Such a request for flexible working arrangements can only be refused on reasonable business grounds which must also be outlined in any response. Employers may wish to use the Response to Request for Flexible Working Arrangements form to respond to any such request.

If the employee who made the request is covered by a modern award or enterprise agreement, the employer should also check the terms of the instrument as it may contain a clause outlining additional information concerning how an employer must respond to a request for flexible working arrangement. In general, modern awards contain a clause dealing with this issue.

Finally, employers also need to be mindful that they do not breach any State or Federal anti-discrimination laws when considering a request from an employee for a flexible working arrangement (eg due to an employee's pregnancy). This applies to all employees (regardless of their length of service), prospective employees and contractors.

It is recommended that employers who receive a request for flexible working arrangements use the Responding to Requests for Flexible Working Arrangements checklist which includes template letters, to respond to such a request. Click here for more information on this.

Employers in Victoria

The Policy has been drafted for the purpose of managing requests for flexible working arrangements under the FW Act. However, there is an option for employers in Victoria to also include in the Policy a brief reference to the obligations under the Equal Opportunity Act 2010 (Vic) (‘EO Act’).

In particular, the EO Act places much broader obligations on employers to accommodate flexible working arrangements in relation to employees with carer’s and parental responsibilities.

Under the EO Act, employers in Victoria must not, in relation to the work arrangements of a contractor, employee or a person being offered employment, unreasonably refuse to accommodate the responsibilities of that person as a parent or carer. Furthermore, the responsibilities as a carer are broader than the provisions contained in the FW Act and apply to any person who is wholly or substantially dependent on the contractor, employee or prospective employee for ongoing care and attention. Additionally, employees are not required to serve any minimum period before becoming eligible to submit a flexibility request. Therefore, it is recommended that employers in Victoria seek additional advice as to their further obligations in relation to an employee’s right to request flexible working arrangements.

Important note to subscribers

The commentaries and documents in Workplace are updated as necessary, to keep them relevant. You should familiarise yourself with the relevant commentary each time you create a document.

This document has been drafted to suit a wide variety of businesses, with a number of options available to enable you to customise the document to better suit your business. Nevertheless, you may need to make other changes to the document so that it suits the specific needs of your business. If you make additional changes, we cannot guarantee that the changes and modifications you make to the document will be legally compliant or enforceable.

This commentary and any additional information provided to assist you in creating this document, does not constitute legal advice.

If you are unsure about any aspect of this document (including the changes or amendments you make to it), you should seek appropriate advice from a lawyer, skilled in these issues. You may also wish to consider contacting Australian Business Lawyers & Advisors for targeted advice on your business’s specific needs.

You should consult with your financial advisor in relation to any relevant taxation or financial issues concerning the document you create.

After creating this document, you should read through it carefully to make sure it meets your business needs and is consistent with other industrial instruments, policies and procedures which operate in your workplace. This commentary is not designed to be provided to employees or other workplace participants.

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