Flexible working arrangements will become part of the Australian workplace norm from 6 June 2023. This is when the flexible work provisions of the Fair Work Act 2009 are set to change.
Although the pandemic has driven many employers to adopt their own flexible working practices, new legislative changes mean employers need to have considered, well-documented assessments of, and responses to, employee requests for flexibility. If rejecting a request, employers will need to be able to explain their decision making to affected employees and, if the decision is challenged, to the Fair Work Commission.
Snapshot of the changes:
- an expanded category of employees will be eligible to request a flexible work arrangement;
- introduction of a specific process that employers must follow when they receive requests for a flexible work arrangement; and
- employees have the ability to refer a dispute about a request for a flexible work arrangement to the Fair Work Commission (FWC).
Who is eligible to request flexibility?
An employee (including casuals engaged on a regular and systematic basis) must have 12 months continuous service in order to be eligible to make a request for a flexible working arrangement. The employee must also have one of the following personal circumstances:
- a parent of a child of school age or younger;
- a carer as defined by law;
- has a disability;
- aged 55 or over;
- experiencing family violence or is supporting an immediate family member or household member facing family violence; (from 6 June 2023) or
- pregnant (6 June 2023).
What flexibility can be requested?
This will depend on the nature of the work performed by the employee, but could include:
- changes to standard hours of work such as start and finish times;
- part-time work;
- working compressed hours or days;
- splitting shifts;
- job sharing; and
- the ability to work remotely.
How is a request made?
Employees must make a request for a flexible working arrangement in writing. The request must state what is being requested and include reasons for their request.
Process employers must follow in dealing with requests
Employers have 21 days to formally respond to a request. Employers must have a conversation with the employee about their request and give consideration to the likely impact of a refusal on the employee.
If an employer wants to refuse a request, it can only be on reasonable business grounds, after having genuinely tried to reach an agreement with the employee about ways to accommodate the request (or a modified version of the request).The employer must in writing:
- provide detailed reasons for the refusal, including how the reasonable business grounds apply to the specific request;
- inform the employee of any other alternative working arrangement the employer would be willing to accommodate; and
- inform the employee of the dispute resolution processes available through the FWC.
The specific circumstances of the employer, including the nature and size of the enterprise carried on by the employer, are relevant to whether the employer has reasonable business grounds to refuse a request.
Resolving a dispute
If after 21 days an employer and employee are unable to reach agreement or the employer fails to respond to the request, then the employee may apply to the FWC to conciliate or mediate the dispute. If conciliation or mediation is unsuccessful, the FWC may arbitrate the dispute.
If a dispute is arbitrated, the FWC can make orders as to whether the employer’s reasonable business grounds for refusal were in fact reasonable, order the employer to grant the employee’s request or make change to accommodate the employee’s circumstances.
What employers need to do before 6 June 2023
Employers are encouraged to ensure that their practices reflect the 6 June 2023 changes. This could include having a standalone flexible work policy that sets out eligibility guidelines for flexible working arrangements and the processes that will be followed.
Managers should also be trained on the need to actively engage with employees in relation to flexible work arrangement requests and be able to respond to requests so as to avoid a dispute escalating to the FWC. We often see mangers struggle to articulate why they think a flexible working arrangement will not work. Similarly, performance concerns that have not been raised with employees are often relied upon as a reason for refusal. If employers can’t clearly articulate reasonable business grounds, or if employees do not accept the reasons, the matter is more likely to end up in front of the FWC.
We already work flexibly. Is there anything I need to do?
We recommend employers with existing widespread flexible working practices, such as a hybrid working policies, still review their practices. Mandating specific days (or number of days) to come into the workplace might ultimately breach these new requirements where eligible employees request alternative arrangements and they are refused without due consideration. This is particularly so where the refusal is based on companywide policy and does not take into account the employee’s individual circumstances and the impact of the refusal on them.
How we can assist
Given the prospect of the employees raising disputes about flexible work to the FWC, employers must ensure any written responses to requests are carefully considered. Justitia is able to assist to determine whether there are reasonable business grounds for a request to be rejected.
Justitia has a various template documents available to purchase, including a Flexible Work Requests Policy, flexible working request form, checklist considering for flexible working requests and template response to request letters. Please contact Janet Tan with any queries.