Flexible work requests

Certain employees have a right to request flexible working arrangements (such as changes in hours of work) from their employer. An employer can only refuse such a request on ‘reasonable business grounds’

Employers must give employees a written response to the request within 21 days, stating whether they grant or refuse the request. Employers may refuse the request only on reasonable business grounds. If the employer refuses the request, the written response must include the reasons for the refusal.

Requests for flexible working arrangements

Requests for flexible working arrangements form part of the National Employment Standards (NES). The NES apply to all employees regardless of any award, agreement or contract, and regardless of a person’s position or seniority in a business.

The NES include a right for certain employees to request flexible working arrangements (such as changes in hours of work) from their employer. An employer can only refuse such a request on ‘reasonable business grounds’.

Who is eligible to make a request?

An employee may request a change in their working arrangements from their employer if they require flexibility because they:

are the parent, or have responsibility for the care, of a child who is of school age or younger
are a carer
have a disability
are aged 55 years or older
are experiencing violence from a member of their family, or
provide care or support to a member of their immediate family or household, who requires care or support because they are experiencing violence from their family.

If an employee is the parent of a child or has responsibility for the care of a child and is returning to work after taking parental or adoption leave, the employee may request to return to work on a part-time basis to help them care for the child

Employees are not entitled to make the request unless they have completed at least 12 months of continuous service with their employer immediately before making the request.

Casual employees are entitled to make a request if:

they have been employed by the employer on a regular and systematic basis for a sequence of periods of employment of at least 12 months immediately before making the request
there is a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

What changes can be requested?

Examples of changes in working arrangements may include:

changes in hours of work, for example, reduction in hours worked, changes to start/finish times
changes in patterns of work, such as working ‘split-shifts’ or job sharing arrangements
changes in location of work, for example, working from home or another location.

What are the requirements for making and approving a request for a change to working arrangements?

The request must be made in writing and set out details of the change sought and reasons for the change.

What are reasonable business grounds for refusing a request?

Reasonable business grounds for refusing a request for flexible working arrangements include but are not limited to:

the new working arrangements requested by the employee would be too costly for the employer
there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee
it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee
the new working arrangements requested by the employee would be likely to result in significant loss of efficiency or productivity
the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.

The employer is not required to choose between granting an employee’s request in full or refusing the request. Rather, employers and employees are encouraged to discuss their working arrangements and, where possible, reach an agreement that balances both their needs.

Can a refusal of a request be challenged?

Employers must either approve or refuse an employee’s request in writing within 21 days. If the request is refused, the employer must also include reasons for the refusal. It is a contravention of the legislation if an employer does not respond according to these requirements.

There is no requirement for an employer to agree to a request for flexible working arrangements. However, the Fair Work Commission (FWC) has the power to deal with a dispute about whether an employer had reasonable business grounds for refusing a request.

An employee may also have remedies under the relevant State discrimination legislation, including the discrimination provisions under the Federal Fair Work Act 2009, if an employee considers they have been discriminated against by the employer‘s handling or refusal of their request.