Can You Demand Flexible Working Arrangements?

Requests for flexible working arrangements form part of the National Employment Standards (NES).

The NES applies to all employees regardless of any award, agreement or contract.

The NES contains a right for certain employees to request flexible working arrangements which include changes in:

  • hours of work;
  • patterns of work such as shifts; and
  • locations including working from home or another location.

An employer can only refuse such a request on “reasonable business grounds”.

You can request flexible working arrangements if you:

  • are a parent, or have responsibility for the care of a child who is of school age or younger;
  • are a carer who provides personal care, support and assistance to another individual who satisfies any of the following:
    • the individual needs it because they have a disability;
    • the individual has a medical condition (including a terminal or chronic illness);
    • the individual has a mental illness; or 
    • the individual is frail and aged;
  • have a disability;
  • are 55 or older;
  • are experiencing violence from a member of their family, or
  • provide care or support to a member of your immediate family or household, who requires care or support because they are experiencing violence from their family.

Casual employees are also entitled to make a request if:

  • they 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; and
  • there is a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

A request must be made in writing.

An employer must respond in writing with 21 days.

The employer can refuse the request if:

  • the changes would be too costly;
  • there is no capacity to change work arrangements of other employees effected;
  • it would be impractical to change working arrangements, recruit other employees or accommodate the change;
  • the change would result in significant loss of efficiency or productivity; or
  • the change would have a significant impact on customer service.

There is no obligation on an employer to agree to a proposed change.

The Fair Work Commission manages disputes over requests for flexible working arrangements. The jurisdiction operates on a user pay basis and each party will be liable for its own costs of a dispute other than in exceptional circumstances.

Employees can also bring a claim for adverse action taken by an employer where an employee is:

  • terminated;
  • disadvantaged; or
  • treated differently or offered different terms of employment to other employees, where they seek to enforce a workplace right.

The Fair Work Act prohibits an employer from taking adverse action against an employee or a prospective employee for discriminatory reasons or for exercising a workplace right.

Business owners need to ensure they have policies and procedures in place to manage requests for flexible working arrangements by employees.

Employees must be mindful that an employer may have reasonable grounds for refusing a request for flexible working arrangements.