Changes were made to the flexible work arrangement regime under the Fair Work Act 2009 (Cth) (FW Act) in June 2023. These changes expanded employees’ rights to request flexible work arrangements and also allowed for employer refusals for flexible work to be eligible for determination by the Fair Work Commission (FWC).
Prior to these changes, employees could request flexible working arrangements in writing on the basis of the grounds set out under the FW Act. Employers who considered the requests and decided to refuse same, on ‘reasonable business grounds’ had to provide written notice including reasons for the refusal within 21 days of receiving the flexible work request.
The changes introduced the following:
1. Expanded Reasons for requesting flexible work arrangements
Employees have a right to request flexible work arrangements if they are pregnant, or if a member of their immediate family or household is experiencing family and domestic violence.
2. Employer Response
Employers are required to discuss the request with the employee, and to genuinely try to reach an agreement prior to refusing any flexible work request.
3. FWC Powers
If an employer refuses a flexible work request, the employee is able to refer the matter to the FWC. The FWC can deal with the dispute in a number of different ways, to try to reach a resolution.
Employers must consider whether the employee making a flexible work request is eligible under the FW Act to make such a request, whether the request is in writing and clearly sets out the proposed changes to the employee’s work and the circumstances that the employee is relying on to make the request, and then consider whether the request can be accommodated. If the employer refuses the request, they must provide written notice of the refusal detailing the reasons for same, and advise the employee of any changes that they are willing to make to the employee’s working arrangements.
It is important that employers are up to date on the flexible work request provisions of the FW Act and know what their obligations are if they receive such a request.
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