While Section 65 of the Fair Work Act 2009 (the ‘Act’) provides for flexible working arrangements, the employer can stifle any requests.
Section 65 of the Act provides that an employee may request a change in their working arrangement if:
- the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;
- the employee is a carer (within the meaning of the Carer Recognition Act 2010 );
- the employee has a disability;
- the employee is 55 or older;
- the employee is experiencing violence from a member of the employee’s family;
- the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family.
An employee who is a parent, or has responsibility for the care, of a child; and is returning to work after taking leave in relation to the birth or adoption of the child; may request to work part-time to assist the employee to care for the child, if they have completed at least 12 months of continuous service with their employer immediately before making the request. However, this also provides that the employer may then deny that request. Just as Section 65 provides for the employee to make the request there is no compulsion, except in certain circumstances, for the employer to agree to that request. And while casual employees are also entitled to make the request if they have been employed by the employer on a regular and systematic basis for a 12 month period immediately before making the request, and there is a reasonable expectation of continuing employment with the employer on a regular and systematic basis, they too can make the request with the employer also generally entitled to reject the request.
Requesting a flexible work arrangement?
To make an application to your employer, the Act provides that you must make that application in writing and you must date it. It must also set out the details of the change sought and the reasons for the change.
The employer must then provide a written response to the request within 21 days, stating whether they grant or refuse the request. An employer can only refuse a request only on reasonable business grounds for example; but not limited to:
- that the new working arrangements requested by the employee would be too costly for the employer;
- that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
- that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
- that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;
- that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.
If the employer refuses the request, the written response must also provide the reasons for refusal. If an employer rejects a request for a flexible work arrangement based on reasonable business grounds, the right to dispute this decision in the Fair Work Commission (Commission) may be limited.
The Commission has held, pursuant to section 739(2)(a) of the Act, there is a requirement to have a “particularised written agreement between the parties to empower the Commission to deal with a dispute.”
That is, there would need to be a specific clause/s relating to flexible work arrangements to be contained in the employee’s enterprise agreement (or other applicable industrial instrument) covering your employment which would empower the Commission to deal with a dispute about whether the employer, in fact and at law, had reasonable business grounds to reject a request for a flexible working arrangement.
If the employer fails to respond within 21 days and/or the relevant industrial instrument to your workplace contains specified flexible work arrangement provisions; there may be grounds to dispute an employer’s decision within the Commission.
For assistance you can contact the Workplace Advice & Support team at Professionals Australia for assistance. Our phone number is: 1300 273 762.
This publication is considered general information only and is not intended to be relied upon as legal advice or as a substitute for legal advice. If you require advice on your specific situation, please contact the Workplace Advice & Support team at Professionals Australia.
About the author – Patricia Ralph
Patricia is a Lawyer/National Industrial Advisor at Professionals Australia based in the Queensland office. She provides advice and representation for members on a range of employment law and industrial relations matters across federal and various state jurisdictions. Patricia has a Bachelor of Management, Bachelor of Laws and a postgraduate qualification of Graduate Diploma in Legal Practice.