Reasonable Requests for Flexible Working Arrangements

In response to the ‘Secure Jobs, Better Pay’ Bill, it is about to become more challenging for employers to refuse employee requests for ‘Flexible Working Arrangements,’ with increased employee opportunity and rights within the eligibility criteria and disputes process. Although these specific changes do not take effect until June 2023, employers benefit from knowing about and preparing for them now.

The new changes expand employee eligibility for Flexible Working Arrangements, now including pregnancy as a valid criterion. Employees also gain stronger rights to challenge an employer’s refusal. If an employer denies a request, the employee can ask the Fair Work Commission to review the decision. The Commission has the authority to order the employer to approve the arrangement when it qualifies as a reasonable request.

Eligibility

To recap for those employers who are not aware, flexible working arrangement eligibility extends to:

A parent who cares for an infant or school-aged child
A carer as defined within the Carer Recognition Act 2010
Individuals with a disability
Individuals 55 years or older
Anyone experiencing domestic or family violence and/or caring for someone experiencing it
Pregnancy (June 2023)

Denying a Request

To refuse a request, an employer needs to have grounds for ‘reasonable refusal.’ Below, we have given some examples of situations where this may be applicable:

The conditions within some Awards will make it difficult to accept special requests for some employees in consideration of work hours. For example, a request may involve working a short morning shift followed by a 6-hour gap before additional evening hours.
The adjustment of requested hours will see an increased employer cost in response to applicable penalty and overtime rates. For example, the request to work from home after 6pm incurs additional penalty rate costs for the employer.
The employee who is working from home has the potential to disrupt the working arrangements of other employees. For example, three employees have Mondays off and one has requested to work flexibly from home this day due to difficulties acquiring care for an infant. It would not be reasonable to have four employees out of the office on the same day.
It is not safe or possible to have the employee’s role undertaken within a working-from-home environment.
Employees can perform only part of their role in a flexible working environment. For many employers, this arrangement may not be reasonable due to costs and productivity concerns. Often, employers must hire additional staff or transfer duties to another employee to fully cover the role.

To justify denying a request, an employer must show clear evidence. The adjustment must cause significant costs, reduce efficiency, harm productivity, or impact customer service. It may also be impractical when considering other employee arrangements or current role requirements.

Employers must fairly review every request for flexible working arrangements. Any denial should be backed with adequate evidence.

Fair Work encourages open discussion between employers and employees. If a request cannot be met in full, both parties should negotiate alternative arrangements that provide a balanced outcome.

Consider the conditions of the intended working environment and employee safety when approving a ‘Flexible Working Arrangement’ request. This will require regular WHS audits and the implementation of strategies to uphold communication and positive psychosocial health. For more information on how to keep employees safe at home, review our ‘Working From Home Checklist’.

If you are finding it difficult to respond to an employee request, Assurance HR Management can equip you with the correct documentation and knowledge, do it with you by talking you through the associated process, or do it for you by addressing employee requests on your behalf and assessing how ‘reasonable’ the request is in consideration of working from home provisions, the ability to split hours, rosters, costing, etc. Call us today at 1800 577 515 to discuss how we can best support you.