What is flexible working?
Flexible working involves asking your employer for reasonable changes to your work hours to suit your needs, including childcare commitments and other needs as a parent. This can include reducing your hours, change the times you start and finish work, job sharing and working from home.
What are flexible working arrangements?
As mentioned above, some employees who have worked for the same employer for at least 12 months can request flexible working arrangements, such as changes to hours, patterns or locations of work.
Employees covered by an award also have some extra rights when asking for flexible working arrangements.
Examples of flexible working arrangements include changes to:
- hours of work (for example, changes to start and finish times)
- patterns of work (for example, split shifts or job sharing)
- locations of work (for example, working from home).
Can I apply for flexible working?
To ask for flexible working, you must generally have worked for your employer for at least 12 months. Some organisations allow applications earlier than this – so check with your employer.
Some single parents worry about discussing their parenting needs with their employer, but remember that you have the right to make this request. As long as you meet the criteria, your employer has to take your request under consideration and cannot legally discriminate against you for having parenting needs. Criteria can include but is not exclusive to workers who:
- are the parent, or have responsibility for the care, of a child who is school aged or younger
- are a carer (under the Carer Recognition Act 2010)
- have a disability
- are 55 or older
- are experiencing family or domestic violence, or
- provide care or support to a member of their household or immediate family who requires care and support because of family or domestic violence.
Requests for flexible working arrangements have to:
- be in writing
- explain what changes are being asked for
- explain the reasons for the requested change.
Casual employees may also be entitled to make a request if:
You have been employed by the employer on a regular and systematic basis for a sequence of periods of employment of at least 12 months immediately before making the request. Also there needs to be a reasonable expectation of continuing employment by the employer on a regular and systematic basis.
What will employers do with the request ?
The request must be made in writing and set out details of the change sought and reasons for the change.
Employers must give employees a written response to the request within 21 days, stating whether they grant or refuse the request. Employers 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.
What are reasonable business grounds for refusing a request?
Reasonable business grounds for refusing a request for flexible working arrangements include but are not limited to:
- the new working arrangements requested by the employee would be too costly for the employer
- there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee
- 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
- the new working arrangements requested by the employee would be likely to result in significant loss of efficiency or productivity
- the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.
The National Employment Standards do not require the employer to choose between granting an employee’s request in full or refusing the request. Rather, employers and employees are encouraged to discuss their working arrangements and, where possible, reach an agreement that balances both their needs.
Can a refusal of a request be challenged?
Employers must either approve or refuse an employee’s request in writing within 21 days. If the request is refused, the employer must also include reasons for the refusal. It is a contravention of the Fair Work Act 2009 if an employer does not respond according to these requirements.
There is no requirement for an employer to agree to a request for flexible working arrangements. However, the Fair Work Act 2009 empowers the Fair Work Commission or some other person to deal with a dispute about whether an employer had reasonable business grounds for refusing a request. This generally only happens if the parties to the dispute have agreed in an employment contract, enterprise agreement or other written agreement for that to occur.
In addition, the Fair Work Act 2009 allows State and Territory laws to continue to apply to employees where they provide more beneficial entitlements than the NES in relation to flexible work arrangements. In Victoria, for example, provisions of the Equal Opportunity Act 1995 prohibit an unreasonable refusal to accommodate an employee’s responsibilities as a parent or carer.
An employee may also have recourse under relevant discrimination legislation, including the discrimination provisions under the Fair Work Act 2009, if an employee considers they have been discriminated against by the employer‘s handling or refusal of their request.
For more information on unlawful workplace discrimination, please see our Workplace discrimination fact sheet.
Fair Work Online: www.fairwork.gov.au
Fair Work Infoline: 13 13 94
