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Changes to flexible work arrangements from 1 December 2018

The Fair Work Commission has announced changes to flexible work for millions of workers across the country. As of 1 December 2018, employers will need to make a genuine attempt to reach a flexible working arrangement, and provide details for any refusals.

Flexible working arrangements include changes to hours of work, patterns of work and locations of work.

Employees who are able to request flexibility under the changes are those who have been with the same employer for at least 12 months and fit any of the following criteria –

  • are the parent, or have responsibility for the care, of a child who is school-aged or younger
  • are a carer (under the Carer Recognition Act 2010)
  • have a disability
  • are 55 or older
  • are experiencing family or domestic violence
  • provide care or support to a member of their household or immediate family who requires care and support because of family or domestic violence.

Senior Employment Relations Adviser from Employsure Michael Wilkinson said, “While workers don’t have an uninhibited right to their flexible work request, the new clause requires employers to detail any alternative arrangements they can provide and lets workers dispute whether employers have correctly followed the process.

“Let’s say you approach your boss with a request to work from home two days per week. Your boss can refuse your request; however, they need to justify the reasonable business grounds, then state whether alternative options or a counteroffer is available,” said Mr Wilkinson.

According to the Fair Work Ombudsman, the changes require employers to give serious consideration to requests for flexible working. “Before responding to a request from an eligible employee, an employer must first discuss the request with the employee to try to reach an agreement about a change to their working arrangements. Requests can only be refused on reasonable business grounds. If employers refuse a request, they need to provide the employee with a written response.”

“It is quite common for employers to reject a flexible request because it is simply too costly to implement because of things like the cost of equipment and lost productivity, including the “Potential that the job simply cannot be done effectively from home,” said Mr Wilkinson.

“If an employee asks his or her boss to leave early twice a week for family commitments, employers need to consider how they will fill the gap. Is it necessary to fill the gap? Will significant change be required for the gap? If the gap needs to be filled, how much will it cost the business to fill such as advertising and training?”

Mr Wilkinson says it’s important for both employees and employers to remember that the changes are encouraging open dialogue and collaboration around flexible working arrangements, and aren’t in place to force employers to lose value in their business or staff. In the event that the flexible conditions do affect staff performance, they can be revoked.

Requests for flexible working arrangements must be made in writing, with an explanation of the changes being asked for and the reason.

Employers must then respond in writing within 21 days as to whether the request is granted or refused, with a refusal only allowed on business grounds. If the request is refused there must be reasons included in the response.

Reasonable business grounds for rejection can include:

  • the requested arrangements are too costly
  • other employees’ working arrangements can’t be changed to accommodate the request
  • it’s impractical to change other employees’ working arrangements or hire new employees to accommodate the request
  • the request would result in a significant loss of productivity or have a significant negative impact on customer service.

If a state or territory law provides an employee with a better entitlement to flexible working arrangements this will continue to apply.

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Hannah Blackiston

Hannah Blackiston was an in-house journalist with Elite Agent. She worked with the company from January 2018 to January 2019.