Right to Request Flexible Work

28 November 2018

The Modern Awards include a new clause outlining the right to request flexible work. This is part of a Fair Work Commission’s consideration of family-friendly working arrangements. The ACA encourages member practices to familiarise themselves with the clause and to ensure that they understand and meet their obligations. 

Modern Awards, including the Architects Award, now include a new clause regarding the right to request flexible work. The clause is effective from the first full pay period after 1 December 2018.

The right to request flexible work is already one of the 10 minimum employment entitlements of the National Employment Standards (NES). This decision supplements the NES provisions in the following areas:

  • The group of employees eligible to request a change in working arrangements relating to parental or caring responsibilities has expanded to include ongoing and casual employees with at least six months’ service but less than 12 months’ service.
  • Before refusing an employee’s request, the employer is required to seek to confer with the employee and genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances.
  • If the employer refuses the request, the written response to the request must include details of the reasons for the refusal, including the business grounds for the refusal and how these apply. It must also include details of alternative working arrangements the employer can provide to accommodate the employee’s circumstances.
  • If a different change in working arrangements is agreed, the written response must include the details of these changes.

Each of these impacts the employer’s responsibilities and obligations. The ACA recommends that members familiarise themselves with the material already available on flexible work arrangements, understand how to respond to a request, including consulting with the employee in a meaningful way, and what constitutes ‘reasonable business grounds’ under which the refusal of a request is considered valid.

What are reasonable business grounds for refusal?

The Fair Work Ombudsman states that 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 Fair Work Ombudsman points out that this does not require the employer 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.

Useful resources

A flexible workplace can provide real benefits to the practice, as well as employees, and there is a great deal of excellent material available for employers to help understand the opportunities and challenges. The ACA website includes a range of material on flexible work, and we provide links to material elsewhere below.

Fair Work Ombudsman

The Fairwork Ombudsman has a good range of resources on flexible work, including an overview of flexibility in the workplace, a description of flexible working arrangements (including examples and an outline of reasonable business grounds for refusal) and best practice guides on work and family and the right to request flexible working arrangements.

Workplace Gender Equality Agency

The WGEA has an excellent range of material on strategic approaches to flexibility, including the business case for flexibility, briefing notes on workplace flexibility and managing flexibility requests and step-by-step instructions for developing and implementing a workplace flexibility strategy.

Parlour Guides

The Parlour Guides to Equitable Practice are directly addressed to architectural practices and employees. These include guides to Flexibility, Part-time Work, Career Breaks, and challenging Long Hours cultures.

Parlour website

The Parlour website includes a number of useful articles on effectively managing flexible workplaces in architecture

The ACA will continue to publish material to assist members to run effective and profitable practices that are also fair and equitable and support employees in a variety of circumstances.