There have been recent amendments to the Fair Work Act 2009 (Cth) (Act) which will make changes to the current flexible work provisions in place. Whilst the Act gave eligible employees the ability to make a request for flexible work, there was little recourse under those provisions if the employer refused the request.

The amendments to the Act change this, with the ability for employees to seek the assistance of the Fair Work Commission in circumstances where the employer refuses the employee’s request or fails to respond to the employee in writing within the 21 day time limit.

Alongside this, the expectation on employers responding to flexible work requests has expanded, with an additional requirement set to come in as part of the changes which requires a discussion to occur at the workplace level between the parties. If the employer remains unable to accommodate the request for flexible work, then the employer is required to provide a written explanation of the reasons why (including reference to the relevant business grounds) and outline any relevant changes that they would be prepared to make to accommodate the employee’s request.

Even prior to these changes coming into effect, a recent decision of the Fair Work Commission has highlighted the importance of giving proper consideration to requests for flexible working arrangements.

In this case, the Commission determined that Ambulance Victoria lacked reasonable business grounds when it refused a paramedic’s request to work different night shift patterns to enable her to care for her young children. The requested flexibility fell outside the normal roster configuration, but the Fair Work Commission held it was not sufficient for the employer to simply determine it could not accommodate the request on that basis. Instead, the Commission determined that Ambulance Victoria should have tried to genuinely reach an agreement with the paramedic. Without that attempt, “any purported reasonable business grounds were vitiated by the failure to do so”.

While this authority is a single member decision and there are some specific enterprise agreement considerations at play, the decision provides some guidance to employers to ensure they have an open dialogue with employees who are requesting flexibility.

Finally, the changes expand the scope of those eligible to make flexible work requests to include eligible employees experiencing family and domestic violence, and also to include pregnant employees.

The changes are due to commence on 6 June 2023, giving employers time to prepare their processes and review relevant policies or procedures which support these requests.

It also allows employers time to invest in training their leaders on how to appropriately respond to these requests. Decipher Workplace Law can assist employers in reviewing and updating their flexible work policies, and educating their leaders, ahead of these changes.

For more information, contact us.

This is general advice only and does not constitute legal advice. Please seek legal advice regarding your specific circumstances