Right to Request: Flexible Working Arrangements
A staff member who is currently on Maternity Leave has requested to return on flexible working arrangements. Who is eligible to make a request? What are the formal requirements?
An eligible Employee (other than a Casual Employee) must have completed at least 12 months of continuous service with the Employer immediately before making the request.
An eligible Casual Employee must be a long term Casual Employee of the School immediately before making the request and must have a reasonable expectation for continuous employment on a regular and systematic basis.
Section 65(1A) of the Fair Work Act 2009 (Cth) provides the circumstances in which the Employee may request to change their working arrangements:
- 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 employee's family;
- 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.
Section 65(3) of the Fair Work Act 2009 (Cth) provides that the request must:
- be in writing; and
- set out details of the change sought and of the reasons for the change.
What are Flexible Working Arrangements? What do I need to do with the request?
Examples of flexible working arrangements include changes in:
- hours of work (e.g. reduction in hours worked, changes to start and finish times)
- patterns of work (e.g. working ‘split-shifts’ or job sharing)
- location of work (e.g. working from home).
Under Section 65A(1) of the Fair Work Act 2009 (Cth), the Employer must give the Employee a written response to the request within 21 days, stating whether the Employer grants or refuses the request. The Employer may refuse the request only on reasonable business grounds. If the employer refuses the request, the written response must include the reasons for the refusal, set out the employer's particular business grounds (see below) for refusing the request, and explain how those grounds apply to the request.
What are reasonable business grounds for refusing a request?
Section 65A(5) of the Fair Work Act 2009 (Cth) states that the following are reasonable business grounds:
- that the new working arrangements requested by the employee would be too costly for the employer;
- that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
- that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
- that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;
- that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.
NB: This list is not exhaustive. It gives an indication as to what would be considered.
Please note that there have been changes to the Fair Work Act 2009 which from June 2023 empower the Fair Work Commission to deal with disputes about a flexible work arrangement (sections 65B and C).
I have a Teacher that has requested to work only 2 and a half days a week for child care purposes. The spread of the timetable makes this very difficult to achieve. What do I do if I think I am not able to grant them their request?
It is not essential for an Employer to choose between granting an Employee’s request in full or refusing the request. The School should rather meet with the Employee to discuss their proposed working arrangement and the issues that may arise if the request is granted. Where possible, the Employer should attempt to reach an agreement that balances both the needs of the School and the Employees.
The School should examine all options available to them particularly any employment opportunities within the School that can be offered, such as a Teacher working in a boarding house supervision role or an RFF role. The more options the School provides the Employee, the easier it is to demonstrate to the Fair Work Commission that the School has tried to accommodate the Employee’s need for flexible working arrangements. A written response needs to be issued to the Employee within 21 days of their written request, setting out the reasons for the refusal of the initial request, any options that are available or a statement of the revised agreements (if agreed).
NB: As an Employer you are not required to hold open an Employee’s Full-Time position until he/she no longer requires flexible working arrangements. You may offer changed terms and conditions as an ongoing variation to the Employee’s contract of employment.