Requests for flexible work: the manager’s written answer

Who can make the request

Section 65 lets an employee ask for a change in working arrangements because of particular circumstances. The Act’s note gives changes in hours, patterns and location of work as examples. The circumstances, in the Act’s words, are that:

• “the employee is pregnant;
• 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 family and domestic violence;
• 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 family and domestic violence.”

Fair Work Act 2009, s 65(1A)

An employee other than a casual needs at least 12 months of continuous service with the employer immediately before asking. A casual needs to be a regular casual employed over at least 12 months, with “a reasonable expectation of continuing employment by the employer on a regular and systematic basis.” The request itself has to be in writing and set out the change sought and the reasons for it.

The three answers, and the steps before a no

Section 65A(2) allows three written responses: the request is granted; a different change, agreed after discussion; or a refusal including what subsection (6) requires.

A refusal has conditions before it can be given. The Act says the employer may refuse only if:

“(a) the employer has: (i) discussed the request with the employee; and (ii) genuinely tried to reach an agreement with the employee about making changes to the employee’s working arrangements to accommodate the circumstances mentioned in subsection (1); and (b) the employer and the employee have not reached such an agreement; and (c) the employer has had regard to the consequences of the refusal for the employee; and (d) the refusal is on reasonable business grounds.”

Fair Work Act 2009, s 65A(3)

The discussion is one of the conditions: a refusal given without first discussing the request and genuinely trying to agree does not meet them. The Act adds that genuinely trying does not oblige the employer to agree to a change it would have reasonable business grounds to refuse.

Reasonable business grounds

The Act does not close the list, but it names five grounds that count:

Reasonable business grounds named in s 65A(5), quoted from the Act

Paragraph	The ground
(a)	“that the new working arrangements requested would be too costly for the employer”
(b)	“that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested”
(c)	“that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested”
(d)	“that the new working arrangements requested would be likely to result in a significant loss in efficiency or productivity”
(e)	“that the new working arrangements requested would be likely to have a significant negative impact on customer service”

The Act’s note makes the employer’s circumstances, “including the nature and size of the enterprise”, relevant: an employer with only a small number of employees may have no capacity to change others’ arrangements to fit the request.

What a written refusal must hold

Subsection (6) sets the contents of a refusal. Read as a checklist for the letter itself:

The fourth line is where the earlier conversation shows: a smaller change can still accommodate the circumstances “to any extent”, in the Act’s phrase.

If it becomes a dispute

Section 65B applies when the employer has refused, or when 21 days have passed with no written response. The two sides must first try to settle it at the workplace by talking; if that fails, either can refer it to the Fair Work Commission, which must first deal with it by means other than arbitration unless there are exceptional circumstances.

An employee applies on the Commission’s Form F10C, and the Commission sends the employer a copy.

At arbitration, section 65C’s orders include treating a non-response as a refusal, deciding whether the grounds were reasonable business grounds, and ordering the employer to grant the request or make other specified changes. That last kind can be made only if the Commission is satisfied there is “no reasonable prospect of the dispute being resolved without the making of such an order”, and it must take into account fairness between employer and employee.

Finally, section 66: where a state or territory law gives employees more beneficial entitlements to flexible working arrangements, the Act is not meant to exclude it. The Fair Work Ombudsman says such a law continues to apply.

Two of the circumstances in section 65 concern family and domestic violence, which has its own paid leave. And in one of the Victorian Equal Opportunity and Human Rights Commission’s fictional examples, a company finds that many women were being denied flexible working arrangements, and the changes it then makes, a flexible workplace policy among them, are described as likely to be reasonable and proportionate measures under Victoria’s positive duty.