Under section 65 of the Fair Work Act 2009 (Cth) (the Act), eligible employees may request a flexible work arrangement (FWA) in certain circumstances. However, employers are often unaware that they have received an FWA request (as defined under the Act), and as a result, can overlook the strict obligations triggered under the Act.
It is critical to recognise when a request constitutes an FWA request, because employers must comply with the specific procedural requirements under the Act when responding.
Who is eligible to make an Flexible Work Arrangement Request
Firstly, a permanent employee, or a casual employee who has been employed on a regular and systematic basis, who has completed at least 12 months of continuous service with the employer, is eligible to make a FWA request.
In addition, the employee must fall within one of the eligibility categories set out in section 65(1A) of the Act and be seeking the flexible arrangement to accommodate their circumstances. An employee may make an FWA request if they:
- are pregnant;
- are the parent, or has responsibility for the care, of a child who is of school age or younger;
- are a carer (within the meaning of the Carer Recognition Act 2010);
- have a disability;
- are 55 or older;
- are experiencing family and domestic violence;
- provide 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 family and domestic violence.
What a Flexible Work Arrangement Request may look like
For example, an FWA request can look like:
An FWA request will not always take the form of a formal letter or email referring to a “flexible work arrangement” or the Act. It is therefore important for employers to understand what an FWA request may look like in practice.
- A request to work 7:00am to 3:00pm for the first term of the school year so an employee can assist their child with transitioning to primary school and undertake school pick-up during that period.
- Requesting to work from home every Wednesday and leave two hours early once a fortnight to accompany an elderly parent to specialist medical appointments and provide ongoing care support.
- An employee who is experiencing pregnancy-related fatigue and discomfort requesting a temporary arrangement to work remotely three days per week and attend the office only for essential meetings.
- An employee with a chronic health condition requests a later start time of 10:00am to accommodate medication and treatment requirements, while working later in the afternoon to maintain their ordinary hours.
- An employee aged 58 requests to compress their full-time hours into a nine-day fortnight, enabling them to manage increasing caring responsibilities and support their well-being while remaining engaged in the workforce.
It is crucial to look out for these situations to properly recognise and identity what an FWA request is – a request does not need to use any particular wording to trigger an employer’s obligations under the Act.
Employer Obligations & Potential Consequences
Once an employer receives an FWA request they must respond within 21 days, either:
- approving the request,
- approving the request with agreed modifications, following a discussion, or
- refusing the request, but only after complying with the requirements of section s65A (2) – (7) of the Act and only where there are reasonable business grounds for the refusal.
Importantly, if an employer does not recognise when they receive an FWA request and they don’t respond within 21 days or produce a response that complies with the Act, and the dispute is not resolved at a workplace level, the employee may make an application to the Fair Work Commission (FWC) to deal with the dispute.
Important Considerations for Employers
Employers should ensure that managers and HR teams are able to identify potential FWA requests and understand the obligations that arise once a request is received. Early identification and compliance with the Act’s requirements can significantly reduce the risk of disputes and escalation to the FWC.
If you require assistance with managing flexible work arrangement requests in your workplace or have any questions regarding your obligations under the Act, please contact our team.
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Disclosure statement: This information is general in nature and does not take into account any individual’s or business’ specific circumstances. You should obtain independent legal advice before making any decisions based on this information. Liability limited by a scheme approved under Professional Standards Legislation.