With significant amendments to the Fair Work Act 2009 (Cth) (FWA) coming into force from 6 June 2023, organisations should be aware of and prepared to navigate these changes. This article outlines and discusses changes to flexible work arrangements, as well as what employers can do to prepare.

What was the previous law?

The FWA allowed an employee to request a changes to working arrangements in certain instances, including parental or caregiving responsibilities, being aged over 55, or a disability.

Within 21 days of receiving the employee’s written request, the employer was required to provide a written response granting or denying the request. An employer could only refuse on the basis of reasonable business grounds, as detailed in section 65(5A) FWA, which they were required to explain in writing. As long as the employer followed this procedure, denying the request would not constitute a violation of the National Employment Standards, and the employee would have no right to appeal.

A number of modifications have been made to these provisions of the FWA in order to improve access to these requests and reduce the ability of employers to reject them.

What’s changed?

  1. The FWA expands the availability of these entitlements by allowing the following employees to also request flexible work arrangements:
    • a) employees who have experienced family and domestic violence; or
    • b) pregnant employees
  2. The FWA revises the procedure governing how employees may request a flexible work arrangement from their employer. An employer will be required to provide one of the following written responses to the request within 21 days:
    • a) the request is granted;
    • b) confirming an agreed compromise to the employee’s request (if the parties agree to amend the request after discussion); or
    • c) the request is denied with reasons.
  3. If an employer denies a request, they must:
    • a) discuss the request with the employee;
    • b) make a genuine effort to reach an agreement with the employee about the proposed changes. Employers must now meet with employees to discuss requests for flexible work arrangements, and they cannot deny a request without first considering alternate working arrangements with employees;
    • c) consider the consequences of refusing the employee’s request; and
    • d) ensure that the refusal is based solely on reasonable business grounds, as enumerated in section 65A(5) FWA.
  4. The FWA introduces a new process for appealing the denial of a flexible work arrangement. The employee may access this new jurisdiction if the employer does not grant the request or does not provide a written explanation for the denial within 21 days. As is typical with existing disputes clauses in modern awards and enterprise agreements, parties must now endeavour to resolve the dispute at the workplace level and, if unsuccessful, may appeal to the Fair Work Commission (FWC) for assistance in resolving the dispute.
  5. Unless there are exceptional circumstances, the FWC will have the authority to resolve disputes by means other than arbitration, including conciliation and mediation. After mediation or conciliation (or in exceptional circumstances), the FWC may arbitrate a dispute and issue orders relating to a refusal to grant a flexible working arrangement, if there is no reasonable prospect of the parties resolving the dispute themselves, taking into account fairness between the employer and employee prior to making an order. In resolving a dispute through arbitration, the FWC can:
    • a) order the employer to grant the request; or
    • b) order the employer to make changes (other than the changes requested by the employee) to the employee’s work in order to accommodate, to the extent possible, the employee’s individual circumstances.

Take Aways

These changes are in effect now.

Employers must examine and seek advice on their present practices for assessing and responding to requests for flexible work arrangements as soon as possible to ensure they reflect these significant developments.  This is especially pertinent because employees will have greater access to the FWC’s dispute settlement processes if a request is denied.