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Recent legislative changes to the right to request flexible working arrangements and how they impact you


22 August 2023

New changes in the Secure Jobs and Better Pay legislation have strengthened the right for employees to request flexible working arrangements in three areas from 6 June 2023. Here is a snapshot of the changes and some practical points to consider implementing in your business.

  1. An expanded category of employees will be eligible to request a flexible work arrangement
  2. Introduction of a prescribed process for employers to follow when they receive a flexible work request
  3. Additional powers of the Fair Work Commission (FWC)

Who is eligible to make a request for a flexible working arrangement?

  • 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
  • aged 55 or older

As of 6 June 2023, the eligibility circumstances have broadened to include:

  • are experiencing violence from a member of their family, or provide care or support to a member of their immediate family or household, who requires care or support because they are experiencing violence from their family.
  • Pregnant

It is important to note, employees are not entitled to make the request unless they have completed at least 12 months of continuous service with their employer immediately before making the request.

Process employers must follow to respond to a request

  • Employers must provide a written response within 21 days of the request being made,
  • Discuss the request with the employee to try and reach an agreement
  • The employer must notify the employee if the request is granted or granted but different to what the employee requested or whether the employer is refusing the request.
  • If the employer refuses the request, it can only be refused if the employer has had a discussion with the employee and genuinely tried to make an agreement to accommodate the employee request. The refusal needs to be on reasonable business ground.
  • The written response from the employer should include the following:
    • provide detailed reasons for the refusal, including how the reasonable business grounds apply to the specific request;
    • inform the employee of any other alternative working arrangement the employer would be willing to accommodate; and
    • inform the employee of the dispute resolution processes available through the FWC.

Additional Powers of the FWC

  • If the employer and employee are unable to come to a resolution, or the employer does not respond to the request within 21 days, the employee may reach out to the FWC to conciliate or mediate the dispute. If conciliation or mediation is unsuccessful, the FWC may arbitrate the dispute.
  • There is no time limit to send the dispute to the Fair Work Commission.
  • If a dispute is arbitrated, the FWC can make orders as to whether the employer’s reasonable business grounds for refusal were in fact reasonable, order the employer to grant the employee’s request or make change to accommodate the employee’s circumstances.

Practical points to consider implementing:

  • Update or create a flexible policy, and promote it within the business
  • Train and education your managers and employees to ensure the process is clear for both parties

If you need support to understand the changes or how to respond to a flexible work arrangement request, we are here to assist. For more information on how we can help, call us on 1300 474 672, or send us an email if you need help.

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