Complying with new employee flexible working rights

Recent legislative changes to the Fair Work Act 2009 (Cth) established new rights for employees to request flexible working arrangements. Importantly, employers need to know the difference between a legitimate request for flexible working arrangements and an employee’s request to work from home a few days a week. The bottom line is employees have a right to request a flexible working arrangement as a result of the Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth). Confusing that workplace right with hybrid work arrangements could be costly.

A request for a flexible working arrangement isn’t the same as a hybrid work arrangement.

Australia has increasingly complex industrial relations laws, and employers need to understand the difference between requests made by their employees that must be considered by following regulations and those that fall within the company’s boundaries of general policy.

In the wake of increasing hybrid work arrangements where following the COVID19 pandemic, some employees have grown used to working from home and would prefer a hybrid working arrangement to save time on travel, it can be confusing to ensure a request to work from home should be dealt with as a workplace right or not.

New definition of a flexible workplace request

Fortunately, the full bench of the Fair Work Commission has provided clarity in a recent judgment after changes in the Secure Jobs, Better Pay Act came into effect on 6 June 2023. The Fair Work Commission identified the following requirements that must be met for an employee’s request for a flexible working arrangement to be valid:

1. The employee’s request for changed working arrangements must be ‘because of’ the circumstance and the requested change must ‘relate to’ that circumstance;

2. The employee must have completed 12 months of continuous service immediately before making the request;

3. The request must be in writing; and

4. The request must set out the details of the change and the reasons for the change.

What circumstances are permissible

An employee seeking to apply for a flexible working arrangement is only eligible if they make the request based on at least one of the following circumstances:

The employee’s request for changed working arrangements must be ‘because of’ the circumstance and the requested change must ‘relate to’ that circumstance;

1. The employee is a parent of a child of school age or younger;

2. The employee is a carer;

3. The employee has a disability;

4. The employee is aged 55 or over;

5. The employee is experiencing family violence or is supporting an immediate facility member or household member facing family violence; and/or

6. the employee is pregnant.

Can I refuse a request?

It’s important to note that when an employee provides a written request, an employer must respond within 21 days. Can you refuse a request? Yes, but only where the employer can demonstrate reasonable business grounds for refusal and has demonstrated they have taken steps to address the request, including discussing the request with the employee and genuinely trying to reach an agreement.

Reasonable business grounds to refuse a request include:

• The request would be too costly for the employer.

• There is no capacity to change the working arrangements of other employees to accommodate the request.

• It would be impractical to change the working arrangements of other employees or take on new employees to accommodate the request.

• The requested arrangement would likely result in a significant loss in efficiency or productivity or negatively impact customer service.

Risks to Avoid

There are a lot of risks to avoid that are not well published in guidance from the Fair Work Commission:

There are several risks that employers must navigate, which are not highlighted in the guidance provided by the Fair Work Commission. These include:

• Documentation of Flexible Working Requests: Employers should carefully document any requests for flexible working arrangements, including the evaluation process, the evidence and considerations taken into account, and the final decision. This documentation should be stored in the employee’s file. Failure to properly document these processes could leave an employer unable to prove compliance if an employee challenges their decision.

• Policy Considerations for Hybrid Working: When formulating, implementing, and enforcing company policies related to hybrid working arrangements, employers should ensure their policies do not create conflicts with the newly established flexible working rights of employees. Specifically, policies requiring employees to be present in the workplace on specific days may conflict with previously approved flexible working arrangements. Such conflicts could suggest that an employer unreasonably refused a flexible working request despite being able to accommodate it, thereby breaching their obligations.

• Safety in Flexible Working Locations: The responsibility of ensuring a safe workplace extends to flexible working arrangements where employees may work from locations other than the traditional workplace. To mitigate the risk of workplace health and safety incidents, employers should actively engage with employees to confirm that their chosen remote work location is appropriate and safe.

Hybrid working

Hybrid working arrangements, while increasingly sought after by employees for their flexibility, are not a workplace right.

The preference for a mix of remote and in-office work, particularly among those in computer-based roles, has gained significant media coverage. However, it’s important to acknowledge that a substantial portion of the workforce, including roles such as firefighters, nurses, chefs, and builders, cannot feasibly adopt hybrid working models due to the nature of their work. Despite this, it’s important to note all workers are entitled to request flexible working arrangements. This entitlement focuses on the broader concept of workplace flexibility rather than the specific model of hybrid working, emphasising employees’ rights over their preferences for certain working conditions.

Need help?

If you need help navigating changes to employer obligations, including policy review or consultation, Contact us for help.