Changes to Flexible Working Arrangements: What You Need to Know

Under the new amendments, the eligibility criteria for making requests for flexible arrangements have been expanded. Employee requests can be based on:

• Parents or individuals with caregiving responsibilities for school-aged or younger children.
• Carers under the Carer Recognition Act 2010.
• Individuals with disabilities.
• Employees aged 55 or older.
• Individuals experiencing family or domestic violence.
• Individuals providing care or support to a household or immediate family member affected by family or domestic violence.

To make a request, employees (excluding casual employees) must have been employed by the same employer for at least 12 months. For casual employees, they must be considered long-term casuals and have a reasonable expectation of ongoing employment on a regular and systematic basis.

Employees must submit their requests in writing, clearly outlining the details of the changes being requested and the reasons for the request.

In response, employers are to consider these requests promptly and thoroughly – e.g.

• Engage in a discussion with the employee regarding their request.
• Genuinely try to reach an agreement on the proposed working arrangements.
• Consider the consequences for the employee if the request is denied.

Employers may accept the request, propose alternative changes that accommodate the employee’s needs, or refuse the request.

However, if the request is declined, it must be supported by “reasonable business grounds.” These grounds may include financial implications, impact on efficiency and productivity, practicality of accommodating the changes within the existing workforce, or the need to recruit new employees.

Whether the request is approved or declined, the employer must respond in writing within 21 days of the request for flexible working arrangements being received. In either case, there should also be a communication plan to advise other employees of the changes and their impact.

Where the request is approved, the response should include the changes that have been made to accommodate the request and any other information pertinent to the approval.

Where the request is refused, the response should provide a detailed explanation of the business grounds for refusal and how these grounds apply to the request. Additionally, the response should inform the employee about their right to apply to the Fair Work Commission (FWC) for dispute resolution through conciliation, mediation, or arbitration.

Prior to 6 June 2023, employees had no recourse if their request was denied or ignored after 21 days.

The amendments will empower the FWC to resolve disputes about requests for flexible working arrangements where the dispute relates to a request for a flexible working arrangement and either the employer has refused the request or 21 days have passed since the employee made the request with no response received from the employer.

Initially, the FWC will attempt resolution through conciliation or mediation. If a resolution cannot be reached, the FWC may arbitrate the dispute and issue orders to grant the request. Employers who fail to comply with the FWC’s orders risk facing civil penalties under section 539 of the Act.

As an employer, it is crucial that you familiarise yourself with these amendments and review your current practices for responding to flexible working arrangement requests.

It is recommended you update your flexible work policies to ensure compliance with the new legislation that comes into effect on 6 June 2023.

The new flexible work arrangements bring significant changes for employers, and it is crucial to understand and comply with these changes.

If you require assistance or just want to talk through what the change might mean for your business, reach out to Akyra for an obligation-free conversation.