Changes to Requests for Flexible Working Arrangements from 6 June 2023

24 April 2023

Previously, under the National Employment Standards of the Fair Work Act, eligible employees were entitled to request flexible work arrangements. In response, employers could only reject such requests on reasonable business grounds.

From 6 June 2023, this entitlement to flexible work arrangements is strengthened by further changes to the Fair Work Act.

Specifically, beyond employees with carer responsibilities, a disability, or those older than 55 - an employee experiencing family and domestic violence may also request flexible working arrangements. 

Moreover, once a request is made, employers must discuss this with the employee and genuinely try to reach an agreement before refusing an employee’s request. The employer must then provide their response within 21 days of the request, providing detailed reasons for any refusal. If refused, the employer must also inform the employee of the alternative working arrangements they are willing to make as opposed to meeting the employee’s request. 

Without limiting what constitutes “reasonable business grounds” for refusing such a request, this includes:

  • the new working arrangement request would be too costly;
  • there is no capacity to change it;
  • it would be impractical;
  • the request would largely result in a significant loss in efficiency or productivity; or
  • would likely have a significant negative impact on customer service.

Where an employer refused a request or failed to give a written response within 21 days, the employee may refer this dispute to the FWC.

The FWC is then empowered to resolve the dispute, including by arbitrating the dispute. 

The FWC may make orders such as confirming that the employer had reasonable business grounds for refusing the request or, did not have reasonable business grounds for doing so and may also order the employer to grant the request or, order the employer to make specified changes in the employee’s working arrangements to accommodate the request. 

The circumstances and fairness between the employer and the employee must be considered by the FWC in deciding. If a person contravenes any term of an order made by the FWC, the same may be fined for breaching a civil penalty provision.

Disclaimer: This summary is a guide only and is not legal advice. For further information, call ECA Legal on (08) 6241 6129 or email ecalegal@ecawa.org.au