As many businesses would be aware, a number of legislative
changes commenced on 1 July 2013. Expanded rights for employees to
request flexible working arrangements and the need for employers to
consider those requests and agree when reasonable, are important
for employers to understand. It is particularly important to
appreciate that where the request is properly made and in writing,
the employer must respond to the request in writing within 21 days.
Failure to do so may expose the employer to claims by an employee
that the flexibility provisions have been breached.
Since the introduction of the National Employment Standards
(NES) into the Fair Work Act 2009 (Cth)
(Act) in 2010, employees in certain circumstances
have had the legal right to request flexible working arrangements
from their employers. Initially, this right only applied for an
employee who is a parent or has the responsibility for the care of
a child, and that child is under school age or under 18 with a
The application of that right to request has been broadened to
include a wider range of employees and to clarify the reasons for
which employee requests could be refused. These changes were
enacted in the Fair Work Amendment Act 2013 and have been
in effect since 1 July 2013.
The following is an overview of the current legislation
concerning flexible work arrangements.
What are flexible working arrangements
While not expressly defined nor limited, the Act notes that
examples of flexible working arrangements include:
Changes in hours of work;
Changes in patterns of work; and
Changes in location of work.
Creative use of the provisions may result in requests for
reduced hours, compressed working weeks, adjusted hours and
requests to work remotely, including requests to work from
Who may apply?
The Act distinguishes between casual employees and employees
that are not casual and provides that both are eligible if they
satisfy their respective requirements and any one of the
circumstances listed below:
For casual employees – only if the employee is a long
term casual employee of the employer and has a reasonable
expectation of continuing employment by the employer on a regular
and systematic basis.
For employees other than a casual employee – only if the
employee has completed at least 12 months of continuous service
with the employer immediately before making the request.
The circumstances in which employees can request flexible
arrangements are now as follows:
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
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.
The employee is a parent, or has the responsibility for the
care, of a child, and is returning to work after taking leave in
relation to the birth or the adoption of the child.
How are applications made?
The Act provides that the request must be in writing and must
set out the details of the change sought and the reasons for same.
What are the employer's obligations?
The employer must provide a written response to the employee's
request within 21 days, stating whether the employer grants or
refuses the request and, if the employer refuses the request, the
reasons for the refusal.
Reasons for refusal
The Act provides that an employer can only refuse a request on
reasonable business grounds. While not limiting these grounds, the
Act provides that the following do constitute reasonable business
the requested working arrangements would be too costly for the
there is no capacity to change the working arrangements of
other employees to accommodate the requested working
it would be impractical to change the working arrangements of
other employees, or recruit new employees, to accommodate the
requested working arrangements;
the requested working arrangements would be likely to result in
a significant loss in efficiency or productivity;
the requested working arrangements would be likely to have a
significant negative impact on customer service.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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