What are flexible working arrangements?

At a minimum, employers must comply with the NES for all national system employees.

The second NES provides for flexible working arrangements.  It’s set out in Part 2-2 Division 4 of the Fair Work Act.

Flexible working arrangements allow certain employees who have worked for at least 12 months to request changes to their hours (ie start and finish times), patterns (ie job sharing) or location of work (ie working remotely).

Who can request flexible working arrangements?

Full time and part time employees who have worked for at least 12 months can request flexible working arrangements if they:

• Are pregnant
• 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)
• Have a disability
• Are 55 or older
• Are experiencing family and domestic violence, or
• Provide care or support to a member of their household or immediate family who requires care and support because of family and domestic violence.

Casual employees can request flexible working arrangements if they have been working regularly and systematically for 12 months and have a reasonable expectation of continuing work on a regular and systematic basis.

What must an employer do if it receives a request for flexible working arrangements?

If an employer receives a request for flexible working arrangements, it must provide a written response within 21 days.

Before the employer can refuse a request, it must:

• discuss the request with the employee
• genuinely try to reach an agreement with the employee for alternative arrangements, and
• consider the consequences for the employee of refusing the request.

The employer’s written response must state whether the request is approved or refused, or set out any alternative agreed working arrangements.

Employers can only refuse a request on reasonable business grounds.  If a request is refused, the written response must include the reasons for the refusal.

What are reasonable business grounds?

Reasonable business grounds include:

• The requested arrangements are too costly
• Other employees’ working arrangements can’t be changed to accommodate the request
• It’s impractical to change other employees’ working arrangements or hire new employees to accommodate the request
• The request would result in a significant loss of productivity or have a significant negative impact on customer service

What are examples of flexible working arrangements?

Examples of flexible work arrangements include:

• Reducing hours of work and becoming part time
• purchasing extra paid leave
• Taking unpaid leave
• Changing start and finish times, for instance to assist with school drop off and pick up
• Compressing days of work while perform the same duties
• Job sharing with other part time employees to together perform a full time position, and
• Changing the location of work, including working remotely or on a hybrid basis.

Can an employee challenge the employer’s decision?

If an employer has refused a flexible work request or hasn’t provided a written response within the 21 day deadline, the employee and employer must first attempt to resolve the dispute at the workplace level.

If the dispute remains unresolved, a party may refer the dispute to the Fair Work Commission.

The Fair Work Commission will commonly first attempt to conciliate the dispute but may also arbitrate the dispute and make orders in certain circumstances.