Being informed about the legislative requirements as an employer when you are approaching and considering an employee’s flexible work arrangement request is an important issue. Through inadvertence, employers can miss considering certain statutory requirements.

In a recent appeal decision, the Full Bench of the Fair Work Commission issued a clear directive to employers that any refusal of a flexible working arrangement request must fully comply with all statutory requirements under the Fair Work Act.

The decision serves as a timely reminder that legislative-based procedural obligations are not optional and must be satisfied in full before a refusal can be considered lawful.

What is a flexible working arrangement request?

Section 65 of the Fair Work Act permits eligible employees to request changes to their working arrangements, such as variations to hours, patterns, or work location. Such requests must be made in writing by the employee and include both the details of the change sought and the reasons for it.

Who can make a flexible work arrangement request?

An employee can make this request if they fall into one of the following categories:

• Parent or carer of a child of school age or younger
• Carer under the Carer Recognition Act 2010
• Person with a disability
• Aged 55 years or older
• Experiencing family and domestic violence
• Providing support to a household or immediate family member experiencing family and domestic violence.

Additionally, permanent employees must have at least 12 months of continuous service, while regular casual employees must demonstrate an ongoing and systematic employment relationship over the same period.

Your legal responsibilities as an employer

When an eligible employee submits a flexible working arrangement request, your responsibilities as an employer are clearly outlined in Section 65A of the Fair Work Act.

While the process may be administratively burdensome, employers must fully comply with legislative requirements when determining an employee’s request for a flexible work arrangement and address each component.

This includes:

• The reason for the request
• Genuine consideration of the request
• Applying any company policy and or relevant Award or enterprise agreement terms
• Meeting with the employee to discuss the request
• Genuinely trying to reach agreement
• The ‘positive obligation’ on the employer to consider the effect on the employee of refusal
• A detailed response to the employee, and within 21 days of receiving the request.

Each of these elements must be met by an employer for a refusal to be valid. Failure to meet even one requirement renders the refusal non-compliant under the legislative scheme.

Relevant case example

A recent matter before the Fair Work Commission involved a returning employee who requested to work part-time in her substantive role following parental leave. The employer declined the request unless the employee agreed to work in a different position. The employer did not provide a written response within the required 21-day period and failed to demonstrate it had considered the impact of the refusal on the employee, including financial and career-related implications.

On appeal, the Full Bench found the employer had not met its obligations, and particularly, the duty to consider the effect of its refusal on the employee. As a result, the Commission determined that the employer was not entitled to refuse the request and ordered the flexible working arrangement be implemented as originally proposed.

Key takeaways for employers

When managing flexible work requests, employers must ensure they:

• Comply fully with all procedural and substantive elements of the Fair Work Act
• Engage in meaningful discussions with the employee and attempt to reach a mutually acceptable outcome
• Consider the personal and professional impacts of your decision on the employee
• Maintain comprehensive documentation, including any written responses and meeting records.

A failure to fulfil any part of the statutory process and requirements can lead to the Commission overturning your decision and mandating otherwise.

Procedural fairness and adherence to legislative obligations are not discretionary, rather they are legal requirements that must be fully canvassed in every instance. As always, keep clear records of any decision and process applied in these circumstances, should you need to defend it later.

Charles Watson is GM – IR, Policy, and Governance at the Visual Media Association

This article is of a general nature and guidance only and does not constitute legal advice

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