As part of the four year review of modern awards, the Full Bench of the Fair Work Commission (FWC) noted that approximately “one quarter of employees are not happy with their working arrangements but have not requested a change for various reasons, including that their work environment is openly hostile to flexibility”.

Perhaps unsurprisingly, the rise of ‘flexism’ – a term used to describe the challenges faced by people working (or wanting to work) flexibly – has prompted the FWC to insert a model term on requests for flexible working arrangements (Model Term) into all modern awards, effective from 1 December 2018.

The inclusion of the Model Term provides employees with greater rights to request flexible working arrangements, while employers will have greater obligations to properly consider and respond to their employee’s requests.  Furthermore, employers will also be required to make genuine attempts to reach an agreeable solution on flexible work arrangements with employees for before accepting or rejecting a request.

Who can request flexible working arrangements?

To be eligible for the right to request flexible working arrangements, an employee must have worked for the same employer for a period of at least 12 months on a full-time or part-time basis.

For casual employees to be eligible they must be considered a “long term casual employee”, meaning that they must have worked on a regular and systematic basis for at least 12-months, and has a reasonable expectation of ongoing employment.

Additionally, a request for flexible working arrangements can only be made if the employee:

• is a parent, or has responsibility for the care of a child who is school age or younger;
• is a carer (within the meaning of the Carer Recognition Act 2010);
• has a disability;
• is 55 or older;
• is experiencing family or domestic violence; or
• provides care or support to a member of their immediate family or household who requires care or support because they are experiencing violence from the member’s family.

Initiating a request for flexible work arrangements

Employees may initiate a formal request for flexible work arrangements in writing. The request should set out that the request is made under a Modern Award, and clearly outline the changes sought and the reason for those changes.

Responding to a request

Once a request has been made, an employer will have 21 days to provide a written response and must genuinely attempt to reach an agreement with the employee having regard to:

• the needs of the employee arising from their circumstances;
• the consequences for the employee if changes in working arrangements are not made; and
• any reasonable business grounds for refusing the request.

The response must state whether a request has been granted or refused, and where the request is refused, the written response must include details of the reason for refusal.

It is worth noting that a refusal for flexible working hours may only be rejected on ‘reasonable business grounds’. These include, but are not limited to:

• the new working arrangements would be too costly for the employer;
• there is no capacity to change the working hours of other employees to accommodate the new working arrangements requested;
• it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements;
• the new working arrangements would likely result in significant loss of efficiency or productivity;
• the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.

What happens if a request is rejected?

Where an employee has had their request for flexible working hours rejected, and where they are not satisfied with the reasons for rejection, under the Model Term the employee is entitled to dispute whether the employer has adequately responded to their request.

This right is confined only to the adequacy of the employer’s consideration and not whether there were actual “reasonable business grounds” for the refusal. While this has been welcomed by employers, the unreasonable refusal of a request for flexible working arrangements may still constitute discrimination under state and federal discrimination laws. For example, the Equal Opportunity Act 2010 (Vic) contains explicit obligations on employers to:

• reasonably accommodate an employee or prospective employee’s responsibilities as a parent or carer; and
• provide reasonable adjustments for a person with a disability.

Lessons for Employers

With employees having greater rights to request for flexible working hours, employers should think proactively about barriers to diversity and inclusion within their workplace.

To prepare for the introduction of the Model Term, employers with award covered employees should:

• consider how requests for flexible work arrangements are currently managed, and whether existing policies and procedures should be amended to comply with the Model Term;
• train managers receiving these requests on their obligations to respond.

How we can help

If you need advice on responding to a request for flexible work arrangements, or would like to discuss this topic further, please don’t hesitate to contact our practice leader, Skye Rose on (03) 9843 2100, or fill out the enquiry form below.