Flexible Working Arrangements are Compulsory to Consider
In late 2022 the Federal parliament passed laws that placed a greater onus on employers when there is a request for flexible working arrangements.
The circumstances under which an employee is eligible to make a flexible working request have been extended. Employees experiencing family or domestic violence or who are required to provide care or support to a member of their family or household who is experiencing family or domestic violence, are now eligible to make a flexible working request under the FW Act. Pregnant employees may now also make such a request.
An employer will only be permitted to refuse a request for flexible working arrangements if:
- The employer has:
- 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 that would accommodate the employee’s circumstances; and
- The employer and employee have been unable to reach an agreement; and
- The employer has had regard to the consequences of the refusal for the employee; and
- The refusal is based on reasonable business grounds.
An employer must respond to an employee’s flexible working request within 21 days otherwise they will be considered to have breached this provision of the FW Act and liable for a civil penalty. If an employer refuses an employee’s flexible working arrangement request, the response must:
- Provide details of the reason for the refusal, including how the particular business grounds being relied on apply to the request;
- Set out other changes to the employee’s working arrangements that the employer is willing to make and which would accommodate the employee’s circumstances, or state that there are no such changes the employer is willing to make; and
- Provide information about the dispute resolution provisions.
Reasonable business grounds for refusing a request include:
- The new working arrangements requested would be too costly for the employer;
- There is no capacity to change the working arrangements of other employees to accommodate the request;
- It would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the request;
- The new working arrangements requested would be likely to result in a significant loss in efficiency or productivity; and
- The new working arrangements requested would be likely to have a significant negative impact on customer service.
Where a dispute arises between the parties, the Fair Work Commission (FWC) now has the power to arbitrate and make orders in relation to flexible working arrangements. However, before going to arbitration, the FWC must attempt to resolve the dispute through a dispute resolution mechanism, such as conciliation.
Ring John Morrissey to talk about correct remote working procedures in your business.
