Please note: This article is intended to be brief information only and should not be relied or acted upon as legal advice. You should always seek legal advice tailored to your own individual circumstances. Please also note that this article is current as at the date of publication and the law may have subsequently changed since.

National vs State system employers

This article addresses issues concerning the employment of employees by “national system employers” under the Fair Work Act 2009 (Cth) (Act).

Please be aware that some employees in Western Australia (ordinarily those employed by sole traders, partnerships and non-trading corporations) are employed by “state system employers”, being employers covered by the state industrial relations system under the Industrial Relations Act 1979 (WA).

If you are not sure whether an entity is a national or state system employer, you should seek legal advice.

What are flexible working arrangements?

A flexible working arrangement is generally an arrangement between an employer and employer, under which there is a change or adjustment to the employee’s working arrangements to address the individual needs and circumstances of the employee. Examples of flexible working arrangements include changes in hours of work, patterns of work (such as job sharing or shift arrangements) and locations of work (including working from home).

Some employees who have at least 12 months service may have a right under the National Employment Standards to request changes to their working arrangements (i.e. request flexible working arrangements).

Whilst an employee may have rights in respect of flexible working arrangements outside of the National Employment Standards, this article will only focus on the rights under the National Employment Standards.

If an employee does not have a specific right to request flexible working arrangements, an employee will generally not be prevented from asking their employer to consider a change to their working arrangements and employers will often still try to accommodate employee requests for flexibility where possible. In this regard, many employers acknowledge that flexibility in the workplace can provide benefits, including:

• increased productivity and lower absenteeism;
• greater job satisfaction; and
• less workplace stress.

Who is entitled to request flexible working arrangements?

Under the National Employment Standards, an employee who has served a qualifying period of service is generally entitled to request their employer for a change in working arrangements (also known as a flexible working request or request for flexible working arrangements) if the employee would like to change their working arrangements because of one or more of the following reasons (see section 65 of the Act):

• the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;
• the employee is a carer (within the meaning of the Carer Recognition Act 2010);
• the employee has a disability;
• the employee is 55 or older;
• the employee is experiencing violence from a member of the employee’s family; or
• the employee provides 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.

To be entitled to make a request to change working arrangements under the National Employment Standards, an employee generally also needs to:

• for an employee other than a casual employee – have completed at least 12 months of continuous service with the employer immediately before making the request; or
• for a casual employee – to be, immediately before making the request, a regular casual employee of the employer who has been employed on that basis for a sequence of periods of employment during a period of at least 12 months and have a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

How does an employee make a request?

The employee’s request to the employer must be in writing and set out details of the change sought and of the reasons for the change (see section 65(3) of the Act).

The Fair Work Ombudsman makes template request letters available on its website.

When can an employer refuse a request?

Generally, an employer may only refuse a complying request on reasonable business grounds (see section 65(5) of the Act).

Without limitation, reasonable business grounds which may provide a lawful reason for refusal may include:

• that the new working arrangements requested by the employee would be too costly for the employer;
• that 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; and
• that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.

Employer obligation to provide written response

An employer must give the employee a written response to the request within 21 days, stating whether the employer grants or refuses the request (see section 65(4) of the Act).

If the employer refuses the request (i.e. on reasonable business grounds), the written response must also include details of the reasons for the refusal (section 65(6) of the Act).

The employer may also have additional obligations under an award or enterprise agreement in respect of responding to or deciding a request.

Does an employee have protection from victimisation or retaliation in respect of making a request?

Assuming an employee is entitled to make a flexible working request, it is generally unlawful to take adverse action (including dismissal) against an employee because they have exercised their workplace right to make a flexible working request. An employee may also have protections against coercion or undue pressure in connection with the request.

Even if an employee is not entitled to make a flexible working arrangement request under the National Employment Standards, any request or inquiry by an employee to change their working arrangements may constitute a complaint or inquiry in respect of their employment and it may be unlawful for an employer to take any adverse action (including dismissal) against such employee because they exercised a workplace right to make a complaint or inquiry in respect of their employment.

Other rights and obligations

Employers and employees should be aware that there may be separate rights and obligations in respect of working arrangements under a contract of employment, an industrial instrument (such as an award or enterprise agreement) or other legislation.

Employees covered by an award or enterprise agreement may also be able to make an individual flexibility arrangement (which may change how certain terms in the award or enterprise agreement apply to them).

Furthermore, the Act is not intended to apply to the exclusion of laws of a State or Territory that provide employee entitlements in relation to flexible working arrangements, to the extent that those entitlements are more beneficial to employees than the flexible working arrangement entitlements under the National Employment Standards (see section 66 of the Act).

Further information

If you require advice or assistance, please do not hesitate to contact us.