The unexpected nature of the pandemic and the sudden requirement on employees to work from home has left many wondering whether they have a legal right to continue working remotely. After a tough two-year battle with COVID-19, there is no doubt that the pandemic has left a lasting imprint on many businesses in Australia and in particular, towards remote working, working from home and flexible working arrangements.
The Right To Request Flexible Working Arrangements
Section 65 of the Fair Work Act 2009 (Cth) (FW Act) entails certain employees to request a change in working arrangements, employees eligible to make such a request include:
- a parent or carer who has responsibility for the care, of a child who is of school age or younger;
- the employee is a carer;
- the employee has a disability;
- an 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.
In each case, the employee must have at least 12 months service before being able to make a request. In circumstances, where the employee is a casual, the employee must:
- be a regular casual employee who has been employed on that basis for a sequence of period of employment during a period of at least 12 months; and
- has a reasonable expectation of continuing employment.
While the FW Act specifies the groups of employees that can statutorily request flexible working arrangements, any employee can approach their employer with such a request, however their request may be dealt with differently as it would not be governed by the Act.
An employer who receives a request for flexible working arrangements in accordance with the FW Act must provide a written response within 21 days.
Refusal of the employee’s request for flexible working arrangements
Employers are permitted to refuse a request for flexible working arrangements if they have ‘reasonable business grounds’. A reasonable business ground may include, the cost of accommodating the request, the impact on other employees, customer service or the efficiency or productivity of the employer’s operations.
Flexible working arrangements under the FW Act sound promising for employees. However, this is not the case because the Act limits any capacity to challenge a refusal. This means that no court order can be made against an employer for denying a request.
New Laws
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Secure Jobs, Better Pay Act) has made substantial amendments to the Fair Work Act 2009 (Cth). An implication that flows from the Secure Jobs, Better Pay Act is changes to flexible work which were considered to be ‘outdated’. These changes will come into effect in June 2023.
Under the Secure Jobs, Better Pay Act an employer may only refuse a request for flexible work arrangement if it has:
- discussed the request with the employee;
- genuinely tried to reach an agreement with the employee about making changes;
- had regard to the consequences of the refusal for the employee; and
- the refusal is on reasonable business grounds.
In circumstances, where agreement can’t be reached, employees are able to fight for their flexible work arrangements in the Fair Work Commission.
Key Takeaways
The new changes to flexible working will require employers to genuinely consider requests for flexible working arrangements and actively engage in discussions with employees. In adapting to these changes, businesses should:
- review current flexible working policies to ensure that they set in place procedures and guidelines for considering requests and providing responses within 21 days; and
- ensure that all decision makers in the business understand the changes to the FW Act and how such changes will affect the business. This will reduce the likelihood of any adverse action claims.
National Employment & Labour Lawyers have a dedicated team who can assist you with any flexible working request questions. We offer a free and confidential initial consultation, where we can discuss your situation and provide you with tailored advice. Get in touch with us today!
Relevant articles:
- For more details on the amendments, read our article on Amendments to Australian Workplace Laws.
Disclaimer: The information contained in this article is of a general nature and is not intended to be relied upon as, nor to be a substitute for, specific legal or professional advice.
