Who can use this form?

This form can be used by all employers throughout Australia, except the following excluded employers:

• non-constitutional corporation employers in Western Australia;
• State public sector employers; and
• Local Government employers — except in Tasmania and Victoria.

 
If any of the excluded employers wish to use this form they should seek legal advice, as the form complies with federal legislation which may be more or less generous than that which applies to those employers.

Commentary

The Fair Work Act 2009 (Cth) (‘FW Act’) entitles certain employees to makes a request for a flexible working arrangement.

Employers who are covered by the FW Act are required to consider any requests for flexible working arrangements by employees in the following categories:
 

(a) an employee who is 55 years of age or older;
(b) an employee with a disability;
(c) an employee who is a carer (i.e. an individual who provides personal care, support and assistance to another individual who needs it because that other individual has a disability, medical condition, metal illness or is frail and aged (Carer Recognition Act 2010 (Cth));
(d) an employee who has the responsibility for caring for a child who is of school age or younger;
(e) an employee who is experiencing violence from a member of the employee’s family;
(f) an employee with the responsibility of providing care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family.

Note: From 6 June 2023, pregnant employees will also be eligible to request for flexible working arrangements under the FW Act. Additionally, for the wording in (d) and (e) above, “violence from a member of the employee’s family” will be substituted with “family and domestic violence” expanding the circumstances in which an employee may request a flexible working arrangements (for example violence perpetrated by a member of a person’s household, a current or former intimate partner, and a person who is related to the employee according to Aboriginal or Torres Strait Islander kinship rules.)

Such employees are only entitled to make a request for a flexible working arrangement under the FW Act if the employee has completed at least 12 months of continuous service with the employer immediately before making the request; or in the case of a casual employee, the employee has been employed for at least 12 months on a regular and systematic basis, and has a reasonable expectation that the employment with the employer will continue in the same manner.

An employer can however choose to extend this right to employees who are not eligible under relevant legislation.

The purpose of this form is to provide an easy way to ensure all relevant information regarding a request for a flexible working arrangement is provided and to assist employers in considering a flexible working arrangement request as required under the FW Act.

From 6 June 2023, amendments to the FW Act will come into effect in which further obligations will apply to employers when responding to requests for flexible working arrangements. Requests for flexible working arrangements that are not handled correctly, could lead to a number of legal claims, including, underpayment, breach of award/agreement, discrimination, general protections claim, breach of contract, and unfair dismissal.

The commentary that follows is not intended to be comprehensive and does not address all legal issues that should be considered and addressed in dealing with requests for flexible working arrangements. Employers in Victoria are also subject to additional obligations (see below).

Request for flexible working arrangements

Any request for flexible working arrangements by an employee must be submitted in writing.

The employee should provide as much information as possible about their desired working pattern and the proposed change to their working conditions. The form you will shortly create includes a number of sections that should be completed by the employee to ensure that all relevant information regarding the request is provided by the employee.

The employer’s response
 
Once an employer has received a written request from an eligible employee, the employer is required to respond to the request in writing within 21 days stating whether the employer grants or refuses the request.

A request may only be refused on 'reasonable business grounds'. If the request is refused, details of the ‘reasonable business grounds’ on which the reason(s) for a refusal was based, must be included in the written response to the employee.

The FWA provides the following examples of what may constitute reasonable business grounds for the purposes of refusing a request for a flexible working arrangement:

• the new working arrangement would be too costly for the employer;
• there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
• that it would be impractical to change the working arrangements of other employees, or recruit new employees to accommodate the new working arrangements requested by the employee;
  that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;
• that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.

 It is important to note that the above list is not exhaustive and there may be other reasons a business has that could be taken to be reasonable business grounds in refusing a request for a flexible working arrangement.

Note: From 6 June 2023, further obligations will apply to employers responding to requests for flexible working arrangements such as discussing the request with the employee to genuinely attempt to reach agreement on the request including advising the employee of any alternative arrangement that the employer is willing to make to accommodate the employee’s needs behind the request and informing employees that they have the right to challenge a refusal in the Fair Work Commission.

Employers also need to be mindful that they do not breach any State or Federal anti-discrimination laws when considering a request from an employee for a flexible working arrangement (e.g., due to an employee's pregnancy). This applies to all employees (regardless of their length of service), prospective employees and contractors.
 
It is recommended that employers who receive a request for flexible working arrangements use the Responding to Requests for Flexible Working Arrangements checklist which includes template letters, to respond to such a request. Click here for more information on this.

It is also recommended that employers have a Flexibility Policy in place. Click here for more information on this.

Employers in Victoria
 
Employers in Victoria should seek additional advice as further obligations apply in relation to the right to request flexible working arrangements. In particular, the Equal Opportunity Act 2010 Act (Vic) contains much wider obligations on employers to accommodate such arrangements.
 
Under the Victorian legislation, employers in Victoria must not, in relation to the work arrangements of a contractor, an employee, or a person being offered employment, unreasonably refuse to accommodate the responsibilities that person has as a parent or carer. Furthermore, the responsibilities as a carer are broader than the provisions contained in the FW Act and apply to any person who is wholly or substantially dependent on the contractor, employee or prospective employee for ongoing care and attention. Additionally, employees are not required to serve any minimum period before becoming eligible to submit a flexibility request.
 
Therefore, it is recommended that employers in Victoria seek additional advice as to their further obligations in relation to an employee’s right to request flexible working arrangements.
 
Important note to subscribers

The commentaries and documents in Workplace are updated as necessary, to keep them relevant. You should familiarise yourself with the relevant commentary each time you create a document.

This document has been drafted to suit a wide variety of businesses, with a number of options available to enable you to customise the document to better suit your business. Nevertheless, you may need to make other changes to the document so that it suits the specific needs of your business. If you make additional changes, we cannot guarantee that the changes and modifications you make to the document will be legally compliant or enforceable.

This commentary and any additional information provided to assist you in creating this document, does not constitute legal advice.

If you are unsure about any aspect of this document (including the changes or amendments you make to it), you should seek appropriate advice from a lawyer, skilled in these issues. You may also wish to consider contacting Australian Business Lawyers & Advisors for targeted advice on your business’s specific needs.

You should consult with your financial advisor in relation to any relevant taxation or financial issues concerning the document you create.

After creating this document, you should read through it carefully to make sure it meets your business needs and is consistent with other industrial instruments, policies and procedures which operate in your workplace. This commentary is not designed to be provided to employees or other workplace participants.