In Australia, there is currently no legal course of action available to employees if an employer refuses their request for flexible work.
The lack of legal protection has become particularly apparent since the pandemic transformed our attitudes towards working from home and working flexibly. Since 2020, many employees have continued to work from home or opt for a hybrid approach, with some days spent in the office and some days working from home.
In 2009, the Fair Work Act 2009 (Cth) established a right under section 65 to request flexible work arrangements. However, this is merely a right to make a request, not a right to challenge the result. To be eligible to make a request under the act the employee must have completed 12 months of continuous service with the employer.
Working from home is a common request made under the Fair Work Act; however, the Act’s application it is not limited to that type of request only. Employees can request work arrangements such as flexible start and finish times, compressed hours, casual work, job sharing, time off in lieu and unpaid leave. Requests can be made for different arrangements necessary due to age, disability, domestic violence, or carer’s responsibility.
Employers can reject a request if they have reasonable business grounds to do so. In deciding if there are reasonable business grounds, the employer will consider cost, capacity, practicality, efficiency, and productivity.
If an employer fails to provide a written response to the request within 21 days, an employee can take them to court to obtain one. However, doing so is costly. If the employer provides a written response rejecting the request, there is no legal right to challenge the result.
‘An extraordinary shortcoming of the law’
Giri Sivaraman, a principal lawyer at Maurice Blackburn, termed this “an extraordinary shortcoming of the law”.
“What use is there in being able to compel your employer to provide reasons if you can’t do anything about inadequate reasons?” Sivaraman said.
“A basic and fundamental change that should be made would be giving employees a simple quicker path to the Fair Work Commission to challenge a refusal of a flexible work arrangement,” he added.
Sivaraman acknowledged that there are benefits to working in the office such as collaboration, generating ideas, team building and productivity. However, he noted that employees don’t want to commute as often as they were prepared to do before the pandemic and want flexibility in their work schedules.
“We need the law to urgently catch up,” he said.
We need the law to urgently catch up.
Regarding the Fair Work Act, Sivaraman said, “The year 2009 was a long time ago, and no one was envisaging a pandemic at that point”.
Sivaraman suggested broadening the criteria that are considered in a flexible work arrangement request. He proposed that reducing travel time and enhancing mental health and wellbeing be added to the current list of criteria. He added that employers would still have a right to refuse a request on reasonable business grounds.
“Some professions, such as construction, essential services, health, aged care, transport and manufacturing, are likely to have stronger business grounds,” said Sivaraman.
“However, you wouldn’t expect the same for professional services and the public service.
“Having a path to dispute a refusal clearly puts greater onus on employers to ensure they’ve properly thought through their decisions.”