The next round of Fair Work Act changes drop on 6th June 2023. These are the changes dealing with flexible working requests.
The main change for employers is that you need to discuss the request with the employee, genuinely consider their needs and the consequences if you don’t allow the change in working arrangements and consider alternatives.
Employers need to respond in writing within 21 days outlining whether the flexible working request is approved or refused. If it is refused, this must be on reasonable business grounds and the reason must be given in writing.
Who and what does this apply to?
The National Employment Standards allow certain employees to request flexible working arrangements. You can find a list detailing coverage of employees here
Examples of flexible work requests include hours of work, such as changes to start and finish times, patterns of work, such as splitting or sharing shifts, and locations of work including home based work.
The amendments mean that when an eligible employee makes a request, the employers needs to discuss it with them and follow a prescribed process for providing a considered response.
I’ve received a request, now what do I do?
As an employer, when you receive a flexible working request, you need to first bear in mind that you only have 21 days to provide your decision in writing as to whether to accept or reject the request.
During that time, you need to:
- Meet with the employee to discuss their request
- Genuinely consider their needs and the consequences to them if you don’t allow the change
- Consider alternative arrangements to accommodate the employee’s circumstances
This means you are going to have to act fairly quickly.
Can I refuse the request?
If you do decide to refuse the request, this must be done on reasonable business grounds. What is reasonable will depend on a case by case analysis, but Fair Work have given some examples including that:
- the new working arrangements requested by the employee would be too costly for the employer (note there is case law that just having “a cost” is not sufficient, it has to be “too costly”)
- 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 size and nature of the organisation are also taken into consideration.
It will be critical to maintain paperwork detailing the request, your discussion, the alternatives considered, and the reasonable business grounds where the request was amended or refused.
Employees can refer the matter to be heard in the Fair Work Commission if their employer refuses a request or doesn’t respond within 21 days.
For More Information
For more information on how this applies to your business, or if you have found yourself with a request that you’re not sure what to do with, contact us today.
