Changes to flexible working requests – what employees need to know
As of 6 June 2023, changes to the Fair Work Act 2009 (Cth) will provide employees with an opportunity to contest an employer’s refusal of a flexible working arrangement request.
Under the new provisions, employers must consider and make a reasonable response to flexible work requests from employees who are:
- Over 55
- Living with a disability
- Caring for infants or school-aged children
- Carers (within the meaning of the Carer Recognition Act 2010), or
- Experiencing family or domestic violence or providing care to an immediate family or household member experiencing family or domestic violence.
Covered employees will now have the right to bring a dispute to the Fair Work Commission (FWC) about a refusal of a request for flexible work arrangements.
The FWC has established a dedicated process for employees to escalate a flexible work dispute if it cannot be resolved in the workplace, their employer did not respond to the request within 21 days, or the employee believes refusal of the request is not based on reasonable business grounds.
Making a flexible work request
Eligible employees must submit their request for flexible work arrangements to their employer in writing, clearly explaining what they are requesting and the reason for the changes. Once received, employers must promptly and thoroughly consider the request and respond in writing within 21 days of the request being made.
Your employer will be obligated to discuss the matter with you and attempt to reach an agreement which may involve accepting the request, refusing the request or negotiating changes to suit both parties that differ from the original request.
While provisions concerning flexible work requests have been strengthened, employers can refuse an employee’s request on reasonable business grounds provided they have genuinely attempted to make changes to accommodate the request. Reasons your employer might refuse a request on reasonable business grounds could include when the new working arrangement would be too costly to the business, or the practicality of changing the working arrangement of other employees or recruiting new employees, to accommodate the request. Your employer must communicate any refusal or agreed changes in writing, including reasons why a request has been refused and set out your right to challenge the refusal in the FWC.
Previously, employees have had no avenue to have a denied request reviewed. These changes mean the FWC will now have the power to deal with flexible work disputes where solutions cannot be reached at a workplace level.
The FWC will first attempt to resolve the matter through conciliation or mediation, proceeding disputes to arbitration if they remain unsolved. Employers who breach an order made by the FWC will risk a civil penalty under the Fair Work Act 2009 (Cth).
Additional legislative changes effective 6 June 2023 also strengthen employees’ right to request an extension of unpaid parental leave.
Written by Trent Hancock
Disclaimer: This article should not be construed as legal advice and is not intended as such. If readers wish to obtain advice about anything contained in this article, they should speak with a lawyer and discuss their individual circumstances.