by Kirsten Lesina

Flexible working arrangements, including work from home arrangements, have become more widespread since the huge workplace and societal disruptions caused by Covid-19. Many people don’t know that the right to request flexible working arrangements, if you meet set criteria, is protected by the Fair Work Act 2009 (Cth).

Flexible working arrangements can include changes to your:

  • hours of work (such as start and finishing times)
  • location of work (such as working from home), or
  • pattern of work (such as job-sharing, split shifts).

 

Do you fit the criteria to request flexible working arrangements?

If you have been working for the same employer for at least 12 months (¹), you may have the right to request flexible working arrangements if the following circumstances apply to you:

  • are the parent or have the responsibility for the care, of a child who is school-aged or younger
  • are a recognised carer
  • have a disability
  • are 55 or older
  • are experiencing domestic or family violence, or
  • provide care to a household member or immediate family member who requires care because of domestic or family violence.

Example

Lexie works in IT and is the carer for her elderly mother, who has cancer. Lexie’s mother has been transferred to a different city to receive treatment and Lexie has requested to work remotely to enable her to temporarily relocate to be near her mother and assist in her care.

How do you make a request?

You need to make a request for flexible working arrangements in writing and explain what flexible arrangements you are seeking, and why. Make sure that the “why” fits in with one of the criteria requested above (e.g. you have care requirements for a child, or you have a disability).

 

What obligations are on the employer to consider your request

Employers must take into account your needs, the consequences you will face if the business refuses the request (e.g. being unable to pick your children up from school) and any reasonable business grounds for refusing the employee’s request.

Employers must provide a written response, stating whether they approve or refuse your request, within 21 days of receiving it.

The employer may refuse your request if there are reasonable business grounds for doing so. Reasonable business grounds can include:

  • the arrangements will prove too costly to the business (e.g. having to employ additional staff)
  • other employees’ working arrangements can’t be changed to accommodate the request
  • it’s impractical to change other employee’s working arrangements, and
  • it would cause significant loss of productivity or have a significant negative impact on customer service.

Example

Benjy is the only administration staff member of an accountancy firm and handles reception. Benjy has requested to start an hour late every day to take his son to school. Benjy’s employer Bella considers this request and comes to the decision that hiring a new employee to cover the gap at reception would be too costly, that leaving reception unattended for an hour every morning (the busiest time of the day) would have a significant negative impact on customer service, and that requiring an accountant to sit at reception would have a significant impact on productivity and be impractical. Bella therefore refuses Benjy’s request on reasonable business grounds.

 

How we can help

If you are an employee who is having difficulties with your employer in relation to flexible working arrangements, we are here to help.

If you are an employer who would like advice on how to respond to a flexible working arrangement request or would like us to draft a flexible working arrangements policy that is tailored to your individual circumstances, please do not hesitate to contact our friendly solicitors.

 

(1) In the case of a casual, you may have a right to request flexible working arrangements if you have been working regularly and systematically for at least 12 months for the same employer and you have a reasonable expectation of continuing that work on a regular and systematic basis.