Global Compliance Desk – Australia

From 1 December 2018 modern awards will include new rules about requests for Flexible Work Arrangements.

Requests for Flexible Working Arrangements

An employee may request a change in working arrangements if any of the circumstances referred below apply to an employee, and the employee would like to change his or her working arrangements because of those circumstances; then the employee may request the employer for a change in working arrangements relating to those circumstances. The following are the circumstances:

• The employee is the parent, or has responsibility for the care, of a child who is of school age or younger;
• The employee is a carer (within the meaning of the Carer Recognition Act 2010);
• The employee has a disability;
• The 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.

The employee is not entitled to make the request unless:

• For an employee other than a casual employee, the employee has completed at least 12 months of continuous service with the employer immediately before making the request; or
• For a casual employee – the employee is a long-term casual employee of the employer immediately before making the request and has a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

Formal Requirements

The request must:

• Be in writing; and
• Set out the details of the change sought and of the reasons for the change.

Agreeing to the Request

The employer must give the employee a written response to the request within 21 days, stating whether the employer grants or refuses the request. The employer may refuse the request only on reasonable business grounds. Reasonable business grounds include the following:

• That the new working arrangements requested by the employee would be too costly for the employer;
• That there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
• That 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;
• That the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;
• That the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.

If the employer refuses the request, the written response must include details of the reasons for the refusal. If 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 so as to better accommodate the employee’s circumstances; and
• If the employer can offer the employee such changes in working arrangements, set out those changes in working arrangements.

If the employer and the employee reached 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.