Flexible Working Arrangements

An employee is entitled to make a request for flexible working arrangements if they meet specified criteria, such as being pregnant, a parent or carer, having a disability, being aged 55 or over, or experiencing domestic violence. The employer must consider various points when making a decision and there is also a strict time limit for the employer to respond to any such request.

In a recent case in the Fair Work Commission the Commissioner had to consider whether the employer was entitled to refuse the employee’s request to return to work with different working conditions after having parental leave and now having responsibility for looking after a young child.

An employer can only refuse a flexible work request if the following four requirements are met:

1. the employer has held discussions with the employee and genuinely tried to reach agreement about the request.

2. those discussions have not resulted in agreement.

3. the employer has had regard to the consequences of the refusal for the employee; and

4. the refusal is on reasonable business grounds.

The Fair Work Act provides that an employer must not refuse a request unless all four requirements are satisfied. At first instance the Commissioner found that requirement (4) is the key factor of "substance" notwithstanding the employer’s failure to address points (1) to (3) appropriately, and dismissed the employee’s claim.

However on appeal the Full Bench Decision ruled that all four factors must be established if the employer needs to refuse the request.

Though the reasonable business grounds are an important requirement for refusing a flexible work request it is not the only requirement. Each of the four factors set out above must be satisfied before an employer can refuse a request.

The employer must still have regard to the impact on the employee and provide a written response within 21 days, and give reasons for refusal. This includes reference to the consequences of the refusal on the employee as well as how the employer has had regard to those matters. As the Full Bench stated in its decision, the importance of the written response cannot be overstated.

If you receive a request for flexible working arrangements and have any questions please contact Andrew.