Flexible Working Arrangements

What is a flexible working arrangement?

A flexible working arrangement is an arrangement that allows an employee to request to change their work hours, frequency of work or location of employment.

Do all employees have the right to request a flexible working arrangement?

Anyone can request flexibility – but certain employees have a legal entitlement to request flexible working arrangements under the Fair Work Act.

Key takeaways

• Flexible work arrangements change standard working arrangements to help employees balance work with other aspects of their lives.
• Certain employees have a legal entitlement to request flexible working arrangements under the Fair Work Act (FW Act).
• Flexibility comes in many forms, and different arrangements will suit different workplaces, jobs and employees.
• Best practice employers provide employees flexibility whenever possible to help the worker balance their work and personal lives.
• A trial period is often a sensible option to assess the suitability of a flexible working arrangement before making a final commitment.

What flexible working arrangements are possible?

Workplace flexibility comes in many forms and can include:

• changes to start and finish times
• job sharing
• compressed working hours
• working from home or another location.

Flexible working arrangements: the main types

Under the Fair Work Act, there are 2 main ways employees can make their work arrangements more flexible:

1. flexible working arrangements – when certain employees have worked for the same employer for 12 months, they can make a request to have change their working arrangements; and
2. individual flexibility arrangements – an employer and an employee can negotiate to change how certain terms apply in an award or their enterprise or registered agreement.

Who can request flexible work arrangements?

Anyone can request flexibility – but certain employees have a legal entitlement to request flexible working arrangements under the Fair Work Act (FW Act).

Full-time and part-time employees can request flexible work arrangements if they’ve worked with the same employer for at least 12 months and they:

• 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)
• are a person with disability
• are 55 or older
• are pregnant
• are experiencing family and domestic violence, or
• provide care or support to an immediate family or household member who is experiencing family and domestic violence.

Casual employees can request flexible work arrangements if:

• they meet one of the above criteria (such as being a person with disability, being a carer or pregnant)
• they’ve been working for the same employer regularly and systematically for at least 12 months
• there’s a reasonable expectation of continuing work with the employer on a regular and systematic basis.

Requesting flexible work arrangements

Requests from employees for flexible working arrangements have to:

• be in writing;
• explain what changes are being asked for; and
• explain the reasons for the requested change.

Responding to a request for a flexible work arrangement

Employers who receive a request from an employee for flexible working arrangements need to respond in writing within 21 days. The response has to include whether the request is approved or refused. An employer can only refuse a request on reasonable business grounds and if they have:

• discussed the request with the employee and genuinely tried to reach an agreement on alternative arrangements to accommodate the employee’s circumstances; and
• considered the consequences for refusing the employee’s request.

Not sure about a permanent flexible work arrangement? Set a trial period

Nothing stops an employer and employee setting a fixed period – such as three to six months – to trial a flexible working arrangement. A trial period offers both parties the opportunity to evaluate what may or may not work for the employee and the employer’s business, and how the arrangement can be adjusted if necessary.

Common mistakes employers make upon receipt of a flexible working arrangement request

• Not recognising the lawful entitlement: from 1 December 2018, all Modern Awards were varied to include new provisions for flexible working arrangements that will affect all Award covered employees
• Misunderstanding what a flexible work arrangement is: minor and ordinary work adjustments should not be confused as flexible working arrangements. An employee taking time off using carer’s leave, compassionate leave or parental leave is not the same as working flexibly.
• Not communicating with the employee: employers receiving a request for a flexible working arrangement should hold a discussion with the worker about their needs. Wherever possible, it’s best practice to reach an agreement balancing the needs of the individual with the requirements of your business.
• Failing to comply with the obligation to respond to a request: Employers must give employees a written response within 21 days to advise whether or not their request is accepted. If the employer refuses the request, they must explain the reasons why.

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Frequently Asked Questions

What are the benefits of flexible working arrangements?

Flexibility in the workplace allows employers and employees to agree on changes to working arrangements that suit them both. For employees, this often equates to better work/life balance. It also can help employers attract the best talent, reduce costs and improve the productivity and efficiency of their business.

What is the primary eligibility criteria to make a request for a flexible working arrangement?

An employee cannot make a request unless they have completed at least 12 months of continuous service. An exception is made for casual employees, who must be long term casual employees and have a reasonable expectation of regular, continuing employment.

Why would an employee request a flexible working arrangement?

Flexible work arrangements (FWAs) are typically driven by the need to balance personal responsibilities with professional duties. Reasons can include managing caregiving responsibilities (children or family), health conditions, reducing stress, and accommodating disability or older age.

Is there scope to negotiate flexible working arrangements to suit the employer and employee?

As long as employees are still receiving their minimum entitlements, employers and employees can negotiate ways to make their workplace more flexible.

Can an employer refuse an employee’s request for a flexible working arrangement?

An employer can refuse the request if there are reasonable business grounds for doing so. Valid grounds can include, but are not limited to, factors such as the cost to the employer, impracticability or a likely loss of productivity or reduction in the level of customer service.

Where does working from home fit into a flexible working arrangement?

Working from home arrangements can be agreed between an employer and employee. It’s an option employees can negotiate with their employer if they’re eligible to make a request for flexible working arrangements.

Employers who offer employees the option to work from home should check if there are any applicable rules in their:

• Award or Enterprise Agreement
• employment contract
• workplace policies.

What free resources are available to provide me with information?

The Fair Work Ombudsman (FWO) offers a factsheet on flexible working arrangement eligibility, requirements for making ad responding to a request and how refusal of a request can be challenged.

You can also find the FWO’s best practice guide here.