By Jack de Flamingh and Zak O'Neil -
Snapshot
- Under the Fair Work Act, employees have new rights to challenge an employer’s decision to refuse a request for a flexible work arrangement.
- Employers cannot refuse a request for a flexible work arrangement unless they have ‘genuinely tried to reach an agreement’ with the employee about the proposed working arrangements.
- A range of considerations will be relevant to whether a flexible work arrangement can be refused. These considerations will include processes and policies about flexible work arrangements, the requirements of the business and the extent to which an employee’s personal circumstances have been considered.
A right to request a flexible work arrangement (‘FWA’) has been a feature of workplace relations law since the enactment of the Fair Work Act 2009 (Cth) (‘FW Act’). To date, they have been more ‘bark than bite’, with employers generally being able to refuse requests on reasonable business grounds without any recourse for the employee or testing of those reasons. The position was accurately surmised by the Honourable Minister for Industrial Relations in the second reading speech: ‘Under our current laws, an employee can ask for flexible work, but if their employer says no, they’ve got nowhere to go’.
Enter the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth). As from 6 June 2023, the amendments broaden the legislative right to request a FWA to include circumstances when an employee, or a member of their immediate family or household, experiences family or domestic violence. The more sweeping change, however, is ‘how’ the employer must respond to a FWA request. An employer must now have a discussion with the employee about the request and ‘genuinely [try] to reach an agreement’. The employer must provide a written response to the request, including details of the ‘reasonable business grounds’ for refusing the request and setting out the changes the employer would be willing to make.
After that discussion is had, and written reasons with alternatives (if any) are proposed, an employee aggrieved by the response may approach the Fair Work Commission for conciliation and, if that fails to resolve the matter, an arbitrated outcome.
In the week following commencement of the new laws, a Full Bench of the Fair Work Commission handed down a decision which informs the meaning of ‘reasonable business grounds’ in the context of a dispute referred to the Commission for arbitration (Ambulance Victoria v Natasha Fyfe [2023] FWCFB 104). Though the new provisions under the FW Act are not considered, as they had not commenced operation at the time of the denied request, the decision sheds light on how the amendments may play out in the workplace.
