Requesting a flexible work arrangment
Requesting a flexible working arrangement is the legal right of all Australian workers. And thanks to recent legislative changes, this right has never been more protected. Like many workers, you may not be aware of the rights you have. In this article, we explain everything you need to know. We outline the different forms of flexible work and the circumstances in which you can make a request. We also detail how you should make a request, the legal obligations of your employer and how you can contest a request refusal via the Fair Work Commission.
Recent legislative changes have expanded your rights
In June 2023, Australian workers were granted expanded rights around flexible working arrangement requests. This came about after the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 took effect. The legislation broadened the circumstances in which a worker can make a request. It also introduced the ability for workers to contest a request refusal via the Fair Work Commission.
What can flexible working arrangements look like?
There are multiple forms of flexible working arrangements that you as an employee can request from your employer. These include:
- Working remotely, be it at home or from somewhere else.
- Starting and or concluding work earlier or later than usual.
- Accruing time off in lieu.
- Working less days per week by working more hours across fewer days.
- Sharing a position with someone else.
- Having a roster that is more flexible.
- Incrementally increasing or reducing your hours (if, for instance, you want to ease into parental leave or retirement).
- Benefiting from flexitime. That is, the ability to work extra hours and use them later as leave.
- Acquiring additional paid leave through a “purchase.”
- Voluntarily taking unpaid leave.
- Transitioning between full-time, part-time or casual work.
- Splitting rostered days into two half-days off.
Who can make a flexible working arrangement request?
Any Australian employee can request work flexibility from their employer. The right to make a request is contained in the National Employment Standards (NES). The NES outlines the minimum employment standards that must be provided to an Australian employee, as per the Fair Work Act 2009. If a worker makes a request, their employer is legally obligated to discuss it with them. You can read more about the process of making a request and your employer’s obligations further below.
Who has the right to flexible work?
The right to make a request must be distinguished from the right to a flexible working arrangement. The latter right is only legally afforded to Australian workers who meet specific criteria. This includes having been employed by their employer for at least 12 months. For casual workers, they must have had regular and systematic employment with their employer for at least 12 months. Also, they must have a reasonable expectation that their employment will continue.
For these kinds of employees, they have the legal right to a flexible working arrangement if they are one or more of the following:
- Disabled.
- A primary caregiver or support person of an individual who requires care because they are disabled, have a medical condition, are frail or of advanced age. They must be considered a carer under the Carer Recognition Act 2010.
- A primary caregiver or support person of an immediate relative, or a person they cohabit with, who is the victim of family or domestic abuse.
- 55 years old or older.
- Currently a victim of family violence.
If legislation in your state or territory offers expanded flexible working rights than those of the Fair Work Act 2009, that legislation will take precedence.
How to make a flexible working arrangement request
To make a flexible working arrangement request with your employer, you must do so in writing. You need to clearly outline the type of flexible arrangement you are seeking. Also, the reasons for your request. The Fair Work Commission provides free templates and examples of request letters that you can use.
Under the Fair Work Act 2009, your employer is legally obligated to provide a written response to your request. This must be provided within 21 days of having received it. If they deny your request, your employer must in writing:
- Explain the grounds for doing so and how they are relevant to your request.
- Outline any proposed alternative flexible working arrangement changes. Or if they do not want to make any changes, provide a statement that that is the case.
- Provide details about how you can seek assistance from the Fair Work Commission concerning your request.
When can an employer refuse a request?
An employer can only refuse a request if they have discussed it with the worker and made a genuine attempt to reach an agreement with them. They must have also considered the implications that the request refusal will have on the worker. The employer must only refuse a request based on “reasonable business grounds.” This can include:
- Concerns about the high cost associated with the new working arrangement.
- The non-feasibility of altering the working arrangements of other employees or recruiting new staff to accommodate the requested changes.
- If it is reasonably believed that the requested changes would lead to a significant loss in efficiency and productivity for the employee.
- Concerns about the potential for a significant negative impact on customer service due to the proposed changes.
Other factors can influence whether a request can be refused on reasonable business grounds. This can include the size and nature of the employer’s business.
Contesting a request refusal via the Fair Work Commission
Prior to going to the Fair Work Commission, an employee must ensure they have made an attempt to come to an agreement with their employer. If no resolution is achieved, the employee can apply to resolve a dispute about flexible working arrangements with the Fair Work Commission. This involves submitting Form F10C. You can submit this form if your employer has denied your flexible working arrangement request. Or if they have not responded to your written request and 21 days have elapsed.
The Fair Work Commission process
Once the Fair Work Commission receives your application, it will notify your employer that you have commenced a dispute case about your request. They will pass on your application form as well as any other information you provided to your employer. A Commission Member will then review your case and decide how it will proceed.
The Fair Work Commission will generally try to resolve the case via a conciliation or mediation session first. This is an informal session designed to foster discussion between you and your employer, with the aim of reaching an agreement. If no agreement is reached, your case may then be escalated to a formal hearing arbitrated by a Commission Member.
The hearing will give you and your employer the chance to provide evidence and advance arguments for or against the request. The hearing will end with the Fair Work Commission delivering a final decision and orders that both parties must comply with.
Example: Worker takes flexible working arrangement dispute to FWC
Since Australian workers were afforded the ability to contest flexible work request refusals via the Fair Work Commission, we have seen a number of cases proceed to a formal hearing. One recent case is Charles Gregory Gregory v Maxxia Pty Ltd [2023].
Mr Gregory was a full-time worker who was denied his request to work from home. He worked at Maxxia, which provides salary packaging advice to employers. The company had a hybrid working policy in place, which required staff to work at least 40 per cent of the time in the office.
On 17 August 2023, Mr Gregory made a flexible working arrangement request with Maxxia. He had requested that he work at home full-time on an ongoing basis. The reason for this request was that Mr Gregory was a parent of a school-aged child. He was in the process of working out a custody arrangement with his ex-partner, which would see him look after the child every second week.
At the time he made the flexible working arrangement request, Mr Gregory looked after his child one day every fortnight. In his request, Mr Gregory also provided proof that he suffered from inflammatory bowel disease. While he did not state that this was a reason for his request, he did attach a letter from his doctor.
Employer responds to request
Maxxia considered Mr Gregory’s flexible working arrangement request with reference to several factors. This included that:
- The company’s clients expect calls to be answered within three minutes, and emails within two days.
- Mr Gregory’s productivity level was deemed to be 50 per cent, well below the target of 80 per cent. The company had attempted to provide support to lift his productivity, with little effect. It therefore deemed that he should be observed in the office.
- Given his tenure with Maxxia, Mr Gregory was expected to contribute to team culture and training to impart learnings to more junior staff.
- The company had been made aware that Mr Gregory was experiencing mental struggles. It was deemed that he could not receive the support he needed if he was not in the office.
On 18 August 2023, Maxxia provided a response to Mr Gregory’s flexible working arrangement request. It offered Mr Gregory the ability to only work in the office for 20 per cent of the time until the end of September. Then from 2 October, he would need to work 40 per cent of the time in the office, in accordance with the company’s hybrid working policy. Maxxia said that Mr Gregory would need to organise his in-office days so that they did not collide with his child caring days.
“A situational crisis and inflammatory bowel disease”
Five days later, Mr Gregory met with Maxxia management and rejected their proposal. He restated his request to work from home 100 per cent of the time and offered further medical evidence. This included an email from his doctor that outlined he had “a situational crisis and inflammatory bowel disease.” The doctor also sought Mr Gregory’s flexible working arrangement request be granted while “he worked through his health issues.” Maxxia, however, stood firm with its decision to reject Mr Gregory’s request.
Employee seeks help from Fair Work Commission
On 1 September 2023, Mr Gregory lodged an application for the Fair Work Commission to deal with his flexible working dispute. Five days later, a conciliation conference was held that did not result in a resolution. Therefore, a hearing took place.
Maxxia submitted to the Fair Work Commission that it would allow Mr Gregory to work from home during the week in which he had custody of his child. And that it would allow him flexible start, finish and meal times. Mr Gregory, meanwhile, argued that he was suffering from a medical condition that “requires him to go to the toilet with urgency and more frequently than usual.”
Fair Work Commission reviews flexible working arrangement request
The Fair Work Commission acknowledged that Mr Gregory had a “sound basis” for working from home when he had custody of his child every fortnight. However, it considered his position with regard to the remaining week as “poor.” It was noted that Maxxia was willing to move Mr Gregory’s desk closer to the office toilet. However, Mr Gregory gave the impression that he did not want to use the work toilet. This was considered “perplexing,” as Mr Gregory had said he was prepared to use service station toilets in evidence provided to the commission.
Was the worker’s bowel condition a disability?
One of the conditions for an Australian employee to be afforded a flexible working arrangement is if they have a disability. The Fair Work Commission therefore had to decide if Mr Gregory’s inflammatory bowel disease constituted a disability.
It was noted that he had not sought any ongoing medical treatment from his doctor to treat his condition. And that he had not seen his doctor in person, as he only delivered online consultations. It was acknowledged that Mr Gregory’s condition “would be an inconvenience.” However, the Fair Work Commission was “not persuaded that it is capable of being described as a disability.”
Fair Work Commission finds request refusal was valid
Another condition for an Australian employee to be afforded a flexible working arrangement is if they are a carer for a child. The Fair Work Commission deemed that there was “no dispute” that Mr Gregory was a parent whose circumstances fell within this condition. However, it took issue with the fact that he had requested to work from home 100 per cent of the time.
It was found that Mr Gregory’s work from homes request “would only relate to the period that Mr Gregory had custody of the child.” It was acknowledged that Maxxia had offered to “provide flexibility” to help him manage his care for his child. The Fair Work Commission also accepted the company’s stated need for Mr Gregory to being the office to have “face to face contact” and so he could be provided with “greater support” to improve his productivity.
Based on these reasons, the Fair Work Commission therefore found that Maxxia had a right to refuse Mr Gregory’s flexible working arrangement request.
Conclusion to: Flexible working arrangements: A guide for employees
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