The Fair Work Act provides employees in the national workplace relations system with a legal right to request flexible work arrangements as part of the National Employment Standards (‘NES’). As of 1 January 2010, these standards apply to all employees covered by the national workplace relations system, regardless of any applicable industrial instrument or contract of employment.
The national workplace relations system covers most Australian workplaces, other than those employed by state government and local governments (unless their employer has a registered agreement in the national system). For these workers the terms of their awards, agreements and employment contracts cannot give them entitlements that are less than those guaranteed under the NES. Some states and territories also have laws that contain similar entitlements. If a state or territory law is more beneficial to the worker than the Act, then it will apply.
To be eligible to apply for flexible working arrangements the worker must have worked for the employer for at least 12 months 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:
- the employee is a parent, or has 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;
- the employee is a carer (the meaning of carer is set out in the Carer Recognition Act);
- the employee has a disability;
- the employee is aged 55 or older;
- the employee is experiencing violence from a member of the employee’s family; or
- the employee provides 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.
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 the 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.
If the worker is not satisfied with the reasons provided for rejecting a request for flexible work arrangements, they may apply to the Fair Work Commission for assistance. The Fair Work Commission can 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. This will usually only happen if the parties have agreed in their employment contract or enterprise agreement or otherwise for that to occur.
It is illegal for the employer to take any adverse action against the 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 within 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.