In the post-Covid era, workplaces are generally becoming more inclusive and accommodating towards employees. However, where is the line by which employers may reject such requests in an effort to balance the interests of both parties?
This article explains what flexible working arrangements are, the new changes to the Fair Work Act 2009 (Cth) (‘the Act’) and recent cases which provide guidance on how flexible an employer must be, noting that there are limits.
What are flexible working arrangements?
In brief, a flexible working arrangement (‘FWA’) is an agreement between the employer and the employee to customise the way the employee performs work. For example, a change to their start and end times of work, patterns of work (e.g. split shifts or job sharing) or location of work. A FWA must be made in writing, explain the changes requested and the reasons for the change.
Who is eligible to request a FWA?
To qualify for a FWA, an employee must meet the following requirements:
- Have worked for the same employer for at least 12 months; and
- Meet one or more of the qualifying criteria under the Act, namely be a parent of a school aged child, a carer, a person with a disability, aged 55 years or older, pregnant, experiencing or providing support to someone encountering family and domestic violence.
Casual employees can be eligible, in addition to permanent full-time and part-time employees, if they have worked for 12 months on a regular and systematic basis with the same employer and has a reasonable expectation of continuing this work.
A FWA is distinct from requesting for reasonable adjustments during a return-to-work plan, performance management process or as a result of a disability. Where an employee is not eligible for FWA, they still may be able to negotiate a FWA with their employer, but will not have the same protections (as explained further below).
What are the recent changes?
The right to request a FWA is captured in the National Employment Standards which comprise minimum entitlements for most Australian employees. Recent changes to the Act have made the process for entering into FWAs more prescriptive, including putting more structure around how employers are to respond to a request for FWA and the dispute avenues.
With the introduction of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), new reforms to the Act[1] have come into effect since 6 June 2023. This includes requiring employers to:
- give a written response to a FWA request from an eligible employee within 21 days of receipt of the request;
- confer with the employee making the request, consider their circumstances and genuinely tried to reach an agreement; and
- if the FWA request is refused based on reasonable business grounds, include details of the grounds for the refusal, the reasons for how these grounds apply to that request and the available options to dispute or appeal the decision.
If discussions at the workplace level do not resolve a dispute regarding a FWA request, a party to the dispute may refer the dispute to the Fair Work Commission (‘FWC’). The FWC usually will conduct a conciliation between the parties, but can also provide mediation, a recommendation or express an opinion. Arbitration is also another option, usually where a conciliation does not result in the parties agreeing on a resolution.
At arbitration, the FWC must take into account fairness between the employer and the employee when making an order. Such orders could be that the employer refused the request on the basis of reasonable business grounds (thus affirming the employer’s decision) or did not have reasonable business grounds (thus, rejecting the employer’s decision). Where the employer provided no response by the required timeframe, this is considered a rejection of the FWA request for which the FWC would need to consider if it was reasonable.
Recent cases on FWA
A year on after the new changes, there have been several decisions of the FWC that have provided insights. In particular, such cases are useful to understand the circumstances in which the FWC might either affirm or reject a FWA decision. Here is an extract of general principles for when an employee is seeking to make a FWA request:
- An employee must illustrate the connection between their circumstances/grounds and their modification request.For example, an employee who needs to care for a family member who has injured their ankle or has asthma may not need to have a FWA if modified work is not essential for caring. A ‘carer’ holds the definition per the Carer Recognition Act 2010 (Cth) and temporary care or family members who can self-manage their disability may not automatically allow for a FWA.[2]
Another example – a request to work from home full-time to care for an employee’s child for whom they have part-time custody, may be unreasonable if is not clear why the employee would need to work at home even at the times when the child is not in their care.[3]
- An employee with a disability may need to provide proof of their disability from a suitable medical practitioner.An online medical provider reported that the employee suffered from inflammatory bowel disease and situational crisis, recommending that the employee receive further treatment, referrals and a FWA. However, the evidence provided was insufficient to persuade the FWC that the employee had a disability as defined under the criteria for a FWA.[4]
- A FWA request must identify the reasons in writingFor example, an employee’s request via MS Teams Message to ‘chat about [their] hours’ was found not to be a valid FWA request as despite the initiation of the request to be in writing, the reasons for which the employee sought the FWA were not clear.[5]
How Can We Help?
If you need help drafting a FWA, considering a FWA request or making an application to the FWC for review, please contact the Snedden Hall & Gallop employment team so that we may provide custom legal advice relevant to your circumstances.
References
[1] Sections 65A, 65B and 65C of the Fair Work Act 2009 (Cth).
[2] Gration v Bendigo Bank [2024] FWC 717.
[3] See Gregory v Maxxa Pty Ltd [2023] FWC 2768.
[4] Ibid.
[5] Jordan Quirke v BSR Australia Ltd [2023] FWCFB 209.
