If you’re a parent who has responsibility for the care of a school-aged child or younger, you will be all too familiar with the challenges of balancing your work and family commitments. Maybe you have tried your hardest to keep working your heart out like you did before you had kids, but you have finally had the realisation that you need better flexibility with your employment situation.
Or perhaps you are over 55 years of age and want to make some general changes in your work life.
Maybe you have a disability that necessitates certain adjustments within your career.
There’s a whole range of reasons why you might be keen to explore the option of asking your employer for a flexible work arrangement.
But what exactly can you ask for and how do you get it? Do you know if your employer has to agree to your request or what your rights are if they say no?
In this Guide for Employees, we cover the essentials of requesting flexible work arrangements.
What are flexible work arrangements?
Flexible work arrangements allow you to change the way in which you do your job. This might mean:
- A change to your hours of work (for example, perhaps you request to change your start/finish times or the total number of hours that you work);
- A change to your pattern of work (for example, perhaps you request a job share arrangement following a return from parental leave); or
- A change to your location of work (for example, perhaps you request to work from home).
Basically, they are arrangements that help you manage your unique personal needs and ultimately enjoy work more.
Flexible work arrangements can take many different shapes and sizes. Some of the more common examples include:
- flexible start and finish times
- compressed hours (working more hours over fewer days)
- flexible rostering
- part-time or casual work
- job sharing
- working from home or another location
- ‘purchasing’ extra paid leave
- unpaid leave
- taking rostered days off as 2 half days
- time off in lieu
- flexitime (allowing employees to bank extra hours which are then exchanged for time off)
- gradual increase or decrease in work hours (for example, after parental leave, or as an employee transitions to retirement).
Flexible work arrangements form part of the National Employment Standards set out in the Fair Work Act 2009. The National Employment Standards apply to all employees covered by the national workplace laws. If you are not an employee to which these Standards apply, you may have rights under applicable State legislation.
Am I eligible to request a flexible work arrangement
Not everyone is entitled to request a flexible work arrangement under the Fair Work Act (although this doesn’t necessarily stop you from negotiating a suitable arrangement with your employer if your employer is willing).
To be eligible to request a flexible work arrangement you must have completed at least 12 months of continuous service with your employer immediately before making the request.
You must also fit into a recognised category in order to request a flexible work arrangement. These categories include if you:
- are the parent, or have responsibility for the care, of a child who is of school age or younger
- are a carer (within the meaning of the Carer Recognition Act 2010)
- have a disability
- are 55 years of age or older
- are experiencing violence from a member of their family, or
- provide care or support to a member of your immediate family or household, who requires care or support because they are experiencing violence from their family.
If you are a parent of a child or have responsibility for the care of a child and you are looking to return to work after taking a period of parental leave, you may request to return to work on a part-time basis. The idea is that this will assist you to continue caring for the child while also enjoying some of the benefits of traditional work.
What if I’m a casual employee? Are the rules the same?
Casual employees are entitled to make a request for a flexible work arrangement if:
- they have been employed by the employer on a regular and systematic basis for a sequence of periods of employment of at least 12 months immediately before making the request; and
- there is a reasonable expectation of continuing employment by the employer on a regular and systematic basis.
If you are a casual employee and you are unsure as to whether you meet the test, please get in touch to discuss your circumstances and gain clarity.
How do I make a request for a flexible work arrangement?
You must put your request in writing. It will not be sufficient to approach your boss and casually ask if they would be supportive of a flexible work arrangement – it must be in writing, such as in an email or old-fashioned letter.
It is very important that you set out the details of the changes that you are seeking as well as an explanation as to why you are seeking those changes. In other words, you need to be prepared to justify your request and demonstrate why the request is reasonable.
What is the process once I make a request?
Once your employer receives your written request, they must properly consider your request.
While not legally required, best practice says that an employer should take into account factors such as:
- Your key duties
- Whether those duties are time or location specific
- Who you interact with in the normal course of your work (i.e. what will the potential impact be to those work relationships)
- Whether your requested changes will impact the usual day-to-day requirements of your role and if so, how?
- The reasons why you are requesting the changes to your work arrangement
- What the consequences for you and your personal circumstances might be if the request is refused
- Whether there are any technology aids that might help facilitate the requested arrangement (for example, video conferencing, remote access, provision of computer equipment that can be used remotely, and/or use of an internal messaging service to facilitate ongoing collaboration).
If your employment is covered by a Modern Award, your employer must discuss the request with you to try and reach an agreement about the requested changes to your working conditions.
In all circumstances, your employer must reply to your request, in writing, within 21 days of receiving your request, and they must outline whether or not they have decided to grant or refuse the request.
If your employer refuses your request, they must also outline the reasons why in their written response. Importantly, your employer can only refuse your request if they have ‘reasonable business grounds’ to do so.
What are reasonable business grounds for refusing a request?
While there are a number of good reasons why your employer should genuinely consider and approve your request for a flexible work arrangement (such as greater job satisfaction, lower absenteeism rates, increased productivity, and lower levels of workplace stress), there are also a number of scenarios where this will not be reasonably possible.
These reasons are terms ‘reasonable business grounds’ and broadly can be summarised to include or relate to the following:
- Cost;
- Practicality;
- Capacity; or
- Inefficiency.
Your employer may refuse your request if the nature or extent of the changes you are requesting are simply too costly for them to implement.
Or perhaps the nature or extent of the changes you are requesting are not practical because your employer cannot reasonably be expected to change the working arrangements of other employees to work around you. For example, if your request would require your employer to take on new employees.
In other situations, your employer might not have the capacity or ability to change the working arrangements of other staff just so that your request can be accommodated. For example, if you are proposing that you only conduct certain tasks at certain times, this might mean that other staff would have to perform the balance of your duties and alter their work hours to accommodate your request. While it may be plausible in some scenarios, it is not always feasible.
Another valid reason for refusing a request for a flexible work arrangement is that the requested arrangement would cause significant loss to your employer, either in terms of productivity or efficiencies. To put it another way, it is too damaging to your employer’s bottom line, processes, or customer service deliverables.
What happens if my employer refuses my request/what are my rights to challenge it?
If your employer fails to respond to your written request for a flexible working arrangement in writing within the stipulated 21 day timeframe, this will constitute a contravention of a National Employment Standard. In those instances, you can apply to the Fair Work Commission seeking a direction that your request is dealt with. In practice, this only becomes relevant if an employer flat-out refuses to respond to your request and you need to take legal steps to prompt a written response.
However, if an employer makes a decision to reject your request and communicates the reasons for that decision in writing within the required 21 day timeframe then, unfortunately, under our current laws, you do not have a right to challenge their reasons. What this means is that if your employer cites “reasonable business grounds” you do not currently have the right to challenge those reasonable business grounds.
Note: Sometimes your employment contract or Enterprise Agreement (where applicable) or other written agreement will overcome this limitation by providing an explicit avenue for challenging an employer’s decision. So it pays to check.
It’s also worth noting that in some States there is specific legislation that provides more favourable entitlements to employees than what the Federal laws provide. For example, in Victoria the Equal Opportunity Act 1995 prohibits an unreasonable refusal to accommodate an employee’s responsibilities as a parent or carer.
Finally, if you believe that the real reason why your request was refused by your employer was because of a discriminatory reason, then you may be able to challenge the decision on that basis.
What are the proposed changes to the current flexible work arrangement laws?
The good news is that on 26 October 2022, the Government announced that it will be introducing legislation to amend the Fair Work Act 2009, in relation to flexible work arrangements. The purpose of the change is to give the Fair Work Commission power to order an employer to deal with requests for flexible workplace arrangements.
Under the new proposed changes to the legislation, an employer can only reject a request for flexible working arrangements if they have:
- Discussed the request with you;
- Genuinely tried to reach an agreement with you;
- Have considered the impacts to you if they reject the request; and
- They have reasonable business grounds to do so.
Perhaps most significantly, the proposed changes will also give power to the employee to appeal the matter to the Fair Work Commission if discussions at the workplace level to resolve the dispute have been unsuccessful.
If the matter proceeds to arbitration, the Fair Work Commission will consider all factors involved and make an order.
Overall, if these proposed changes are introduced, it will strengthen the rights of eligible employees to pursue flexible working arrangements with their employers. Only time will tell.
What should I do now if I want to increase my chances of having my request approved?
A lot of employees face challenges with having their requests for flexible working arrangements approved because they have not put forward a strong business case. Many employees will assume that their employers will do whatever it takes to keep them happy and in turn, they will not give their request a lot of forethought. Given that there are no current appeal rights for employees whose requests have been refused, it pays to get it right the first time. Before you commit pen to paper and hit ‘send’ you need to ensure that you have satisfied all of the requirements for making a valid request. Further, you need to ensure you have a strong business case as to why your request will be both good for you and workable for your employer. What can you offer or suggest to convince your employer that this is ultimately a good thing for business?
How Can Rubix Legal Help You?
At Rubix Legal, we frequently help employees with preparing sound-proof requests for flexible work arrangements. We take the time to listen to your needs and then help you anticipate all the questions that your employer may ask you. We can assist you with drafting a request for a flexible work arrangement and provide you with advice in relation to concerns or questions you have.
At Rubix Legal, our passion is to help you find your voice in the workplace.
Contact us today to find out more.
