What is a flexible working arrangement, and do employers have to agree to them?

What is a flexible working arrangement, and do employers have to agree to them?
The entitlement to make requests for flexible working arrangements is contained in the National Employment Standards (NES). The NES applies to all employees under the Federal workplace relations system and cannot be contracted out of. 

What is a flexible working arrangement request?
This is a request made by an eligible employee for flexibility in their working arrangements. This flexibility includes the following:
•    Changes in hours of work;
•    Changes in patterns of work; and 
•    Changes in location of work. 

Who can make this request?
Full time and part time employees may make a request at any time after the completion of 12 months of continuous service. To make the request, one of the following circumstances must apply to the employee:
•    Being pregnant; 
•    Being a parent; 
•    Being a carer;
•    Being 55 years old or older;
•    Experiencing family and domestic violence; or 
•    Caring or supporting an immediate family member experiencing family or domestic violence. 

Casual employees may also make a request, if they have worked for the same employer regularly and systematically for 12 months and there is a reasonable expectation that this would continue. 

How should the request be made? 
Flexible working arrangement requests must be made to the employer in writing, providing information on the manner of change requested and the reasons for this. 

Responding to requests 
An employer must respond within 21 days, in writing, either approving, refusing, or setting out alternate arrangements as agreed with the employee. Reasonable business grounds include cost, capacity, practicality, and impact of the arrangement requested. 

An employer may refuse a request where there are reasonable business grounds to do so. Further, employers must discuss the request with the employee, genuinely try to make an agreement and consider the consequences for the employee should the request be refused. 

If no agreement is reached
Where a dispute arises following the refusal of such a request, either employer or employee may make an application to the Fair Work Commission. An application may also be made by either party should no written response be given by the employer after 21 days from the date the request was made. The Commission can when arbitrating the dispute dismiss the application for flexible work arrangements or grant the request, requiring the employer to provide the flexible working arrangement requested. 

Disclaimer: This summary is a guide only and is not legal advice. For more information, call ECA Legal on 6241 6129 or email ecalegal@ecawa.org.au