Flexibility Expanded

1 June 2023

From Tuesday 6 June 2023, more employees will be able to request flexible working arrangements, and employers will have new obligations before they can refuse a request.

Recent federal government workplace legislation continues to roll out, with changes to the right to request flexible work arrangements taking effect on 6 June 2023. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 expands the right to request flexible work arrangement to more employees and requires employers to go through a more rigorous process before refusing a request.

The Fair Work ombudsman website outlines the changes as follows:

Expanded access

The right to request flexible working arrangements will also now apply to:

  • employees who are pregnant.
  • employees, or a member of their immediate family or household, experiencing family and domestic violence
    (this now includes behaviours that are abusive or threatening)

Those who already have the right to request flexible work include employees (other than casual employees) who have worked with the same employer for at least 12 months and:

  • 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 violence from a member of the employee’s family, or
  • provide care or support to a member of their household or immediate family who requires care or support because that person is experiencing violence from their family.

Employer obligations regarding flexible work requests

When an employee requests a flexible working arrangement, employers are now obligated to follow a process that includes discussion, negotiation and potential compromise before they can refuse a request. Employers need to deal with a request within a 21-day period. The Fair Work ombudsman website outlines the following process for employers, who are now obligated to:

  • discuss the request with the employee
  • make a genuine effort to find alternative arrangements to accommodate the employee’s circumstances
  • consider the consequences of refusal for the employee
  • provide a written response that includes: an explanation of the reasonable business grounds for refusing the request and how these grounds apply to the request; other changes the employer is willing to make that would accommodate the employee’s circumstances or that says there aren’t any changes; and information about referring a dispute to the Fair Work Commission (the Commission).

If an employer and the employee have agreed to make changes to the employee’s working arrangements that are different to  the employee’s request, the employer needs to confirm these agreed changes in writing within 21 days of the request.

Fair Work Commission

If the parties can’t reach an agreement about a potential flexible work arrangement, the Fair Work Commission will now be able to hear and make orders about disputes. An employee can escalate a case to the Commission if an employer doesn’t respond to a request within 21 days or if an employer refuses an employee’s request and the employee believes there is no reasonable business grounds to do so.

For more information, including examples and definitions of ‘reasonable business grounds’, see the Fair Work ombudsman website.