Flexible working arrangements: Did your employer genuinely try to reach an agreement?

From 6 June 2023, there will be new laws regarding employee requests for flexible working arrangements (FWA).

To be entitled to make a request, an employee must be a permanent employee who has worked for the same employer for the last 12 months. If the employee is a casual employee, they must be a regular casual employee who has been employed on that basis for a period o at least 12 months. Further, the casual employee must have a reasonable expectation of continuing employment on a regular and systematic basis.

The request must be in writing, set out the details of the change sought and the reasons for that change. The employer is required to respond in writing to the request within 21 days. The employer has three options:

• Grant the FWA request;
• Grant FWA arrangement that differs from the request, after discussion and agreement with the employee; or
• Refuse the FWA request.

When can an employer validly refuse a request for FWA?

An employer may only refuse a request for FWA if they have discussed the request with the employee and genuinely tried to reach an agreement with the employee about making changes to the employee’s working arrangements to accommodate their circumstances.

If the employer and employee could not reach an agreement and the employer has had regard to the consequences of the refusal, the refusal must then be on reasonable business grounds.

What are reasonable business grounds for an employer to refuse a request for FWA?

The Fair Work Act 2009 (Cth) specifies five non-exhaustive circumstances which would be considered reasonable business grounds for an employer to refuse a request for FWA:

• It would be too costly for the employer;
• There is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested;
• It would be impractical to change the working arrangements of other employers or recruit new employees to accommodate the new working arrangements requested;
• It would likely result in a significant loss of efficiency or productivity; and
• It would likely have a significant negative impact on customer service.

The above factors act as guides for determining whether a refusal for FWA is on reasonable business grounds, however, the Court or Fair Work Commission will consider the specific circumstances of each situation. This is why tailored legal advice is essential.

If you are an employer or employee and require further information or assistance, please contact us on (03) 9650 4555.