Requests For Flexible Working Arrangements

By Renee Karakinos, Lawyer, MST Lawyers

Introduction

From 1 December 2018, modern awards will include new rules regarding requests for flexible work arrangements. The variations are essentially aimed at enhancing the obligations of employers in dealing with requests for flexible working arrangements and providing an avenue for resolving disputes under the dispute resolution provisions.

Obligations On Employers

Employers covered by a modern award must first discuss the flexible work arrangements request with their employee to try to reach an agreement about changes to the employee’s working conditions, taking into consideration:

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

The employer must provide to the employee a written response within 21 days which outlines whether the request is approved or refused.

Can I Refuse The Employee’s Request?

Requests can only be refused on reasonable business grounds. If a request is refused the written response must include details of the reasons for the refusal, including the business ground(s) for the refusal and how the ground(s) apply.

Reasonable business grounds can include the following:

  • The requested arrangements are too costly;
  • other employees’ working arrangements cannot be changed to accommodate the request;
  • It is impractical to change other employees’ working arrangements or hire new employees to accommodate the request; and
  • The request would result in a significant loss of productivity or have a significant negative impact on customer service.

If the reason for the refusal is because the employer and employee could not agree on a change in working arrangements, the written response must:

  • state whether or not there are any changes in working arrangements that the employer can offer the employee to accommodate the employee’s circumstances better; and
  • if the employer can offer the employee such changes in working arrangements, set out those changes in working arrangements.

If an employer and employee reach an agreement on a change in working arrangements that differs from that initially requested by the employee, the employer must provide the employee with a written response to their request setting out the agreed change(s) in working arrangements.

Dispute Resolution

Disputes about whether the employer has discussed the request to alter working arrangements with the employee and responded to the request in a way required by the award can be resolved via dispute resolution.  All modern awards contain a dispute resolution clause.

Moving Forward

Employers who employ staff under a modern award should review their award (here) and make the necessary amendments to their policies and procedures.

If you have any questions regarding flexible work arrangements and how the above amendments will affect your employees, contact MST Lawyer’s Employment Law team by email or call +61 3 8540 0229.