Responding to flexible work requests

Under the FW Act, employees may request a flexible working arrangement if they meet certain eligibility criteria. Employees, including casuals that work regularly and systematically, can make a request if they have been employed for at least 12 months by the same employer.

A request for a flexible work arrangement can be made if the employee:

• is a parent, or has responsibility for the care of a child who is school aged or younger
• is a carer
• has a disability
• is 55 years of age or older
• is experiencing family or domestic violence; or
• provides care or support to a member of their immediate family or household, who needs the care or support because they are experiencing family or domestic violence.

Employers can refuse a request on reasonable business grounds, which may include that the change would have a significant negative impact on customer service or productivity and efficiency or that it would be impractical to change the working arrangements of other employees to accommodate the employee’s request.

What are the amendments?

The circumstances in which an employee may request flexible working arrangements under the National Employment Standards (NES) have been expanded to include:

• an employee or a member of their immediate family or household experiencing family and domestic violence; and
• a pregnant employee.

There are also new requirements for an employer to respond to requests for flexible working arrangements. The new requirements allow an employer to refuse a request from an employee, if the employer has:

• discussed the request with the employee;
  • genuinely tried to reach agreement with the employee to accommodate the employee’s circumstances and not reached any agreement;
• has had regard for the consequences of the refusal on the employee; and
• has reasonable business grounds for the refusal[AW1] .

The employer must still provide a written response to the employee within 21 days of the employee’s request, and the response must state one of the following:

• the employer grants the request; or
  • there is an agreed change to the employee’s working arrangements that is different to the original request and set out what that agreed change is (following discussions between the employer and employee); or
• that the employer refuses the request.

If the employer refuses the request, it must identify in its written notice:

• the reasons for the refusal;
  • the employer’s particular business grounds for the refusal and explain how those grounds apply to the request; and
• either:
• set out any changes in the employee’s working arrangements that would accommodate the employee’s circumstances that the employer would be willing to make; or
• state that there are no changes; and

set out the effect of the dispute resolution procedure in the FW Act and the Fair Work Commission’s (FWC) ability to arbitrate the dispute.

The amendments will come into effect on 6 June 2023.

Case example: Employer made “no genuine attempt” to negotiate an employee’s flexible working request

The FWC found that an employer made “no genuine attempt” to negotiate an employee’s flexible working request, when agreeing to it would have benefited its business.

The employee was a paramedic employed by Ambulance Victoria.

The paramedic requested a flexible work arrangement to accommodate her caring responsibilities, requesting to shorten her night shifts from 6pm-8am to 9pm-6am. A manager responded to the paramedic refusing the request because that type of night shift did not exist. The paramedic applied to the FWC to deal with a dispute over whether Ambulance Victoria had reasonable business grounds for refusing her request.

Ambulance Victoria submitted that they refused the request because their rostering system did not allow them to implement individual night shift times and doing so would cause difficulties.

The paramedic argued the employer did not understand her proposal. She provided evidence that the employer experienced ongoing staffing issues in her region; nearly every night shift at one of the 11 branches she proposed working at was either unfilled or filled by another employee working overtime.

She submitted that her request was that she be used as a “spare” officer to fill any unexpected vacancies across those branches between 9pm and 6am and that this provided a benefit to the employer as otherwise some of the shifts wouldn’t be covered at all.

The commissioner held that the employee should be given the opportunity to work flexibly for the following reasons:

• the employee did not want a “special roster”; she was trying to fit in with the employer’s operational needs which saw 147 unfilled night shifts in a six-month period
• the employer already considered staff on flexible work arrangements to be “spare” officers[AW2] [VO3] who could work at other branches
• during the proceedings the employer “attempted to explain” why it couldn’t accommodate the request, but when they initially refused the request all they said was that it couldn’t provide shift start and finish times outside the traditional roster
• the employer did not have reasonable business grounds to refuse the request
• there was “simply no reason” why the employer could not treat the employee as a spare and use her when it couldn’t find anyone else to work a 14-hour shift
• the employer only took 16 days to respond and reject the employee’s request and during that time no employer representatives met with the employee.

The commissioner said that accepting the request would have addressed operational needs, partially met community expectations, and enabled the employee to balance work and family needs and that more could have been done to reach a mutually satisfactory outcome.

The commissioner noted that discussions and genuine negotiations with employees will be expressly provided for when the new flexible work provisions discussed above come into effect on 6 June 2023.

Natasha Fyfe v Ambulance Victoria