From 6 June 2023, important changes took effect which introduced new obligations for employers when handling flexible working arrangements requests and expanded the circumstances in which employees may make such requests.
Who can make a request for flexible working arrangements?
In essence, certain categories of employees who have completed at least 12 months’ continuous service with their employer are eligible to make a statutory request for flexible working arrangements.
What types of requests can be made?
The most common requests relate to amending days/hours of work, start/finish times and to working from home, albeit the legislation does not limit the types of changes that can be requested.
How does an employee make a request?
Employees making a statutory flexible working arrangements request must do so in writing, it must relate to their circumstances, and it must meet the requirements of the legislation.
An employee may also have an entitlement to make a flexible working arrangements request under their employment contract, an applicable modern award or enterprise agreement, or an employer policy.
Can an employer refuse an employee’s request?
A statutory request can only be refused on “reasonable business grounds” including if it would be too costly, create significant adverse impacts or be impractical to implement in the workplace.
What are the changes?
The categories of employees who can make a statutory request for flexible working arrangements now include an employee who is pregnant, an employee (or a member of their immediate family) experiencing family and domestic violence, and those returning to work after giving birth or adopting a child.
In addition to other requirements, employers must:
- discuss the request and make genuine attempts to reach agreement with the employee, including by advising of alternative arrangements they could accommodate in order to address the employee’s circumstances before refusing such requests
- provide detailed reasons for refusing the request and consider the consequences for the employee as a result of doing so
Critically, the Fair Work Commission now has jurisdiction to resolve and determine flexible working arrangements disputes including challenges about whether the request was refused for reasons other than “reasonable business grounds”.
Penalties
Employers and individuals (such as directors and managers) may be subject to penalties for non-compliance with the new changes.
Recommended Actions
We recommend employers:
- take a consultative and collaborative approach when dealing with flexible working arrangements requests
- exercise caution when considering flexible working arrangements requests and be prepared to satisfactorily explain the reasons for refusing such requests
- obtain advice regarding the timing, consultation and other technical requirements introduced by the changes as failing to comply with same may give rise to penalties and/or the commencement of Fair Work Commission proceedings
- update relevant business policies and procedures to ensure they align with current legal obligations
- train managers to ensure they are familiar with flexible working arrangements requirements in order to minimise the risk of non-compliance
Questions/Assistance
If you have any questions about the above or would like any other employment related assistance, please contact our Matthews Folbigg Workplace Solutions employment law team.
DISCLAIMER: This article is provided to readers for their general information and on a complimentary basis. It contains a brief summary only and should not be relied upon or used as a definitive or complete statement of the relevant law.
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