Flexible Work Arrangements in Australia | Employment Lawyers

Flexible working arrangements are arrangements that may be made for an employee to carry out their work in a way that accommodates their needs or their commitments outside of work. These arrangements may be made for an employee who has the care of young children, who has a disability, or for other reasons. Under the Fair Work Act, employees in the national workplace relations system may request flexible work arrangements as part of the National Employment Standards (NES).

Who is covered by the National Employment Standards?

The National Employment Standards apply to all employees covered by the national workplace relations system. The national workplace relations system incorporates employees at most Australian workplaces, with the exception of those working for state government and local government departments and agencies (unless their employer has a registered agreement in the national system).

Employees who are covered by the NES cannot be placed on agreements that give them entitlements that are less than those guaranteed under the NES. Some states and territories also have laws that contain similar entitlements.

Eligibility for flexible work arrangements

To be eligible to apply for flexible working arrangements a worker must have worked for the employer for at least 12 months, either on a full-time or part-time basis. Some casual employees who have a reasonable expectation of ongoing employment with the employer may also be eligible.

Employees are eligible to request flexible work arrangements if:

  • they have responsibility for the care of a child who is of school age or younger. If an employee is returning to work after taking parental or adoption leave, they may ask to return on a part-time basis to enable them to care for the child;
  • they are a carer (the meaning of carer is set out in the Carer Recognition Act);
  • they have a disability;
  • they are 55 or older;
  • they are experiencing violence from a member of their family; or
  • they provide care or support to a member of their immediate family or household who requires care or support because they are experiencing violence from the member’s family.

Applying for flexible work arrangements

A formal written request must be given to the employer. It must clearly outline the changes that are sought and the reasons for requesting the changes. Examples of changes in working arrangements may include:

  • changes in hours of work (for example, a reduction in the hours worked or changes to starting or finishing times)
  • changes to the patterns of work (for example, working split shifts or job-sharing arrangements), or
  • changes in location of work (for example working from home or another work location).

After receiving a written request for flexible work arrangements, the employer must seriously consider it. They may only refuse the application on ‘reasonable business grounds’. 

Reasonable business grounds can include:

  • the working arrangements would be too costly for the business;
  • it is not possible to change the working arrangements of other employees to accommodate the arrangements;
  • it is not practical to change the working arrangements of other employees, or to hire new employees, to accommodate the arrangements;
  • the working arrangements would be likely to cause a significant loss of efficiency or productivity;
  • the working arrangements may have a significant negative impact on customer service.

The employer must respond to the request in writing within 21 days of the request being made. The response must state whether the request will be granted or refused. A simple refusal is not a sufficient response. If the request is refused, the response must include full details of the reasons for that refusal.

Where request for flexible work arrangements is refused

If a worker is not satisfied with the reasons provided for rejecting their request for flexible work arrangements, they may apply to the Fair Work Commission for assistance. The Fair Work Commission may hold a conference with the worker and the employer to talk through the issues and try to find a solution to the problem. However, the Fair Work Commission and the Fair Work Ombudsman cannot direct an employer to agree to the request unless the employer has agreed to this previously – for example, where the parties agreed in their employment contract or enterprise agreement that flexible working arrangements would be made.

It is illegal for an employer to take any adverse action against a worker because they have made a request for flexible work arrangements or applied to the Fair Work Commission for assistance. If this occurs, or if an employee considers they have been discriminated against by the employer’s handling or refusal of their request, they may also have remedies under relevant anti-discrimination legislation, including the provisions under the Fair Work Act.

Employees, commission agents, contractors and partners to a partnership are also protected from discrimination by the relevant state anti-discrimination Acts and a complaint could also be made to the relevant state Anti-Discrimination Board or the Australian Human Rights Commission.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

Author

Michelle Makela

Michelle Makela is a Legal Practice Director at Go To Court Lawyers. She holds a Juris Doctor, a Bachelor of Science (Psychology) and a Master of Criminology. She was admitted to practice in 2006. Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. 

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