Updating the Workplace Laws – How to Request flexible working conditions

The recent amendments to the Fair Work Act 2009 (FWA) introduce a new section 65A dedicated to the process of responding to requests for flexible working arrangements.

The grounds are assessed on an objective basis. However, the FWA now provides that employers can refuse requests if:

• the employer has discussed the request with the employee and genuinely tried to reach an agreement with the employee and accommodate their circumstances;
• the employer and employee have not reached such an agreement;
• the employer has had regard to the consequences of the refusal for the employee; and
• the refusal is on reasonable business grounds i.e.
  • it would be impractical or too costly for the employer;
  • there is no capacity to accommodate the request;
  • it would likely result in a significant loss in efficiency or productivity; and
  • it would likely to have a significant negative impact on customer service.

What are penalties if an employee feels as though an employer is being unreasonable?

If an employee considers that their employer’s refusal is unreasonable, the employee can escalate the dispute to the Fair Work Commission. The Commission will first attempt to deal with the matter by conciliation or mediation and if no resolution can be achieved the Commission will proceed to arbitration and can make binding a decision on the parties including ordering that the employer responds to the request and determining whether the employer must accommodate the request.

How long can the process take?

Pursuant to section 65 of the FWA an employer has 21 days to respond to an employee’s request for flexible working arrangements. In circumstances where a matter is referred to the Fair Work Commission the time that can be taken to deal with the matter can depends on various factors including the progression of the dispute and the availability of dispute resolution mechanisms, however if progressed to arbitration this could take months.

What are the grounds for mediation? (If any)

Dispute resolution at the FWC level is first conducted through the process of conciliation or mediation. This is available when:

• The employer has refused a request and the employee considers that the refusal was illegitimate or not on reasonable business grounds;
• The employer has not provided a written response to the employees request within 21 days; and
• the employer and employee are unable to resolve the dispute internally.

Have there been any cases before the Fair Work Commission on this matter and if so, what was the outcome?

Yes, there has been some notable decisions. Recently, in the case of Natasha Fyfe v Ambulance Victoria [2023] FWC 49 the Commission explored Ambulance Victoria’s grounds for refusing Ms Fyfe’s flexible working request. As a working mother, Ms Fyfe requested a change to her rostered hours to allow her to care for her three children whilst her partner was at work. The Commission found that Ambulance Victoria failed to discuss or consult with Ms Fyfe regarding its decision to refuse her request or make any attempt to achieve a workable solution and on that basis their refusal was unreasonable.