Right to Request Flexible Work Arrangements

We recently received a question from an employer who needed to respond to an employee requesting flexible work arrangements (to change from full time to part time and also do some work from home).

Q: Can anyone request flexible work arrangements and can I say no?

First of all, let's be clear about what we mean by flexible working arrangements. A request for a flexible work arrangement might include, for example, changing the hours of work (full time to part time), the pattern of work (start/finish times) and /or the locations of work (working from home).

Employees in certain circumstance have a right to request flexible work arrangements. Under the National Employment Standards, employees who have at least 12 months service AND fit at least one of the following categories can request flexible work arrangements:

  • they are parents, or have responsibility for the care, of a child who is school-aged or younger
  • they meet the definition of a carer under the Carer Recognition Act 2010
  • they are 55 years of age or older
  • they have a disability, and are qualified for a disability support pension
  • they are experience family or domestic violence, and/or
  • they provide care or support to a member of their household or immediate family who requires care and support because of family or domestic violence.

Employee requests should be in writing, outline the reasons for and nature of the request.


It is important to note that while eligible employees have the right to REQUEST flexible work arrangements, the right DOES NOT extend to the employer having to automatically approve the request. More specifically, employers in receipt of a request from an eligible employee must:

  • genuinely consider the request and provide a response, in writing, within 21 days
  • ONLY refuse the request of there are reasonable business grounds for doing so, and
  • if the request is refused, outline their reasons for doing so in writing.

Needless to say, a lot hinges on the interpretation of a reasonable business grounds. Fortunately, there is some guidance offered by the Fair Work Ombudsman, who indicates that a reasonable business grounds might include:

  • the request being too costly for the business
  • other existing employee's arrangements not being able to be changed to support the request
  • it being impractical to change the work arrangements of other employees, and/or hire new employees to support the request
  • a likely significant loss in productivity and/or significant negative impact on customer service.


This article is current at the time of publication, provides general information only and is relevant to those employees/employers covered by the national workplace relations system (which applies to the vast majority of Australians). It may not apply in all cases and information should not be regarded as legal advice. If you have concerns, you should seek advice relating to your specific situation.
 

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