Specific changes regarding the right to request flexible working arrangements and employers’ obligations before refusing these requests came into effect on 6 June 2023. Under the amended regime, employees have a right to request flexible working arrangements under the National Employment Standards (NES) of the Fair Work Act 2009 (Cth). Employers can now only refuse these requests on ‘reasonable business grounds’.
Who can make a request for flexible working arrangements?
Flexible work arrangements include changes in hours of work, such as the start and finish times of a shift; changes in patterns of work including split shifts or job sharing; and changes in location of work, for example, working from home.
An employee may request one or more of these changes in their working arrangements because they:
- Are a parent, or the responsible carer, of a child who is school-aged or younger;
- Are a carer;
- Have a disability;
- Are 55 or older;
- Are experiencing violence from a member of their family;
- Provide care or support to a member of their immediate family or household who are experiencing violence from their family; or
- Are pregnant.
Under the NES, employees are only entitled to make a request if they have completed at least 12 months of continuous service with their employer. The request must be made in writing and set out the change sought and the reason for the change.
Obligations of employers following a request for flexible work arrangements
When a request for flexible work arrangements is made, employers must give a written response to the request within 21 days which states the outcome of the request. If the employer is refusing the request, they must explain the reasonable business grounds for refusing the request. Additionally, the employer must specify any other possible changes the employer is willing to make to accommodate the employee’s circumstances.
In making their decision, the recent changes to the NES obligate employers to discuss any requests with the appropriate employee and, if they refuse the request, to make a genuine effort to find alternative arrangements to accommodate the employee’s circumstances.
The NES emphasises that employers should avoid a binary decision between granting or completely refusing the request. Instead, employers are now encouraged to open communication channels with the requesting employee with the aim of reaching an agreement that balances the needs of both employer and employee.
What are reasonable business grounds?
An employer may refuse a request for flexible working arrangements on the basis of reasonable business grounds.
Reasonable business grounds may include, but are not limited to:
- The requested work arrangement would be too costly for the employer;
- However, the employer must point to some cost over and above what may be regarded as inevitable small adverse impacts for this to be a valid ground of refusal.
- There is no capacity, or it would be impractical, to change the working arrangements of other employees, to accommodate the new working arrangements requested by the employee;
- The new working arrangements would be likely to result in significant loss of efficiency or productivity; or
- The new working arrangements would be likely to have significant negative impact on customer service.
Employee rights to dispute a request refusal
As part of the recent changes, an employer must also provide information about referring a dispute to the Fair Work Commission (FWC) on refusal of request. The FWC can make orders in relation to disputes about flexible working arrangement requests.
In the recent case Ambulance Victoria v Fyfe (2023)(Fyfe)[1], the FWC provided important guidance concerning the threshold of ‘reasonable business grounds’. The case concerned a paramedic, Natasha Fyfe, who requested a flexible work arrangement to care for her children whilst her partner was at work. The normal Ambulance Victoria night shift commences at 6:00pm and concludes at 8:00am. Ms Fyfe requested to commence her shift at 9:00pm and finish at 6:00am pursuant to the Ambulance Victoria Enterprise Agreement 2020 (Agreement). Her request was refused by Ambulance Victoria on the basis that:
- A shortened night shift simply “did not exist”;
- There was insufficient resourcing to accommodate the request;
- Ambulance Victoria could not provide shift times outside the existing team roster configuration.
The FWC concluded that despite citing business grounds for refusal, the employer did not have ‘reasonable’ grounds for its decision, since Ambulance Victoria had failed to consider the employee’s personal circumstances or properly engage in an assessment of reasonable business grounds with due consideration to the operation and business or possible alternatives.
Significance
While Fyfe must be considered in its own context rather than as precedent, this case highlights the importance of employers proactively preparing for flexible work arrangement requests, particularly given the short 21 day timeframe for a response. Employers should ensure they are ready to properly engage with the circumstances of their employee and duly consider all possible arrangements.
Employers must understand possible legal implications of notifying employees of any changes to enterprise bargaining and should be able to provide thorough, reasonable feedback to any flexible working arrangement requests.
Our workplace team at M+E would be happy to help you with understanding how your business should respond to flexible work arrangement requests. Please feel free to reach out to Daniel daniel@morganenglish.com.au to discuss any of your queries.
[1] Ambulance Victoria v Fyfe [2023] FWCFB 104.
