Flexible Work Requests

Under the Fair Work Act 2009 (Cth) (Act), employees may in certain circumstances request flexible work arrangements which include hours, the pattern of work, or the location from where work is performed. The new amendments which came into effect on 6 June 2023, are largely focused on how the request is to be dealt with by the employer.

Specifically, the employer must:

  • give the employee a written response to the request within 21 days and state:

  • that the employer grants the request; or

  • if, following discussion between the parties, the employer and the employee agree to a change to the working arrangements that differs from the original request (setting out the agreed change); or

  • state that the employer refuses the request and include the reasons for refusing the request on reasonable business grounds, and explain how those grounds apply to the request.

Additionally, the employer may only refuse the request if:

  • the employer has discussed the request with the employee and genuinely tried to reach an agreement; and

  • the employer and the employee have not reached such an agreement; and

  • the employer has had regard to the consequences of the refusal for the employee; and

  • the refusal is on reasonable business grounds.

As some small businesses may not have the same capacity as larger employers to accommodate flexible work requests, the Act states that the circumstances of the employer, including the size and nature of the business, may be relevant when considering whether the employer has reasonable business grounds for refusing a request.

If discussions at the workplace level do not resolve a dispute around flexible work requests, a party to the dispute may refer the dispute to the Fair Work Commission.

Takeaway: When considering employee requests for flexible work arrangements, ensure you check eligibility and follow the notice requirements, particularly if you are inclined to refuse a request.

Tina Cooper