25 May 2023

Changes to Flexible Work Requests – 6 June 2023

The Secure Jobs Better Pay Bill next round of changes are due to take effect on 6 June, including provisions which will result in more employees being able to access flexible working arrangements.

The key changes are an expanded scope for employees to request flexible work arrangements, a requirement for businesses to give reasons for any refusal of a flexible working request, limits on reasons for refusing a request, and FWC arbitration powers to deal with disputes.

Expanded Scope

From 6 June, the right to request flexible working arrangements will apply to:

  • employees, or a member of their immediate family or household, experiencing family and domestic violence
  • employees who are pregnant.

These criteria are added to the current list which includes employees who:

  • 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 violence from a member of the employee’s family, or
  • provide care or support to a member of their household or immediate family who requires care or support because that person is experiencing violence from their family.

Employees need to have been employed for at least 12 months before having the right to request flexible working arrangements.

Employer Obligations

Employers will have new obligations before they can refuse a request from an employee for a flexible working arrangement. Employers will have to:

  • discuss the request with the employee
  • make a genuine effort to find alternative arrangements to accommodate the employee’s circumstances
  • consider the consequences of refusal for the employee
  • provide a written response that includes:
  • an explanation of the reasonable business grounds for refusing the request and how these grounds apply to the request
  • other changes the employer is willing to make that would accommodate the employee’s circumstances or that says there aren’t any changes
  • information about referring a dispute to the Fair Work Commission (the Commission).

If an employer and the employee have discussed the request and agreed to make changes to the employee’s working arrangements that are different to what the employee requested, the employer needs to confirm these agreed changes in writing within 21 days of the request.

Crucially, the Bill restricts the definition of “reasonable business grounds” to:

  • when the request is too costly for the employer;
  • when there is no capacity to change the working arrangements;
  • when the changes would be impractical by requiring changes to work arrangements of existing employees or the hiring of new employees;
  • when the change would likely result in significant loss in efficiency or productivity; and
  • when the changes would be significantly detrimental to customer service.

Extended FWC Powers

The Commission will be able to hear and make orders about disputes about flexible working arrangement requests if the parties can’t resolve the dispute at the workplace level. For example, if an employer:

  • refuses an employee’s request , or
  • doesn’t respond to a request within 21 days.

The Commission will have the power to start court proceedings for alleged breaches of these provisions.

Implications for Employers

It is important the employers take care to follow the required consideration and consultation process with the employee in any instance where it appears that a request may not be able to be accommodated.

The legislation does not mean that an employer must automatically approve a request, nor that the employee has the right to flexible work arrangements. It does mean that the employer has the obligation to consider requests and not decline unless there are reasonable business grounds.

With these changes in place and the further obligations on employers to consider, discuss and respond to requests for flexible working arrangements, we recommend that businesses are prepared with the right documents and templates to respond to requests. These include:

  • Flexible Working Arrangements Policy – clarifying who has the right to request, what process to use internally, what the business may consider, and what information you require in a request)
  • Letters to respond with a rejection (or alternative offer) to a request
  • Letters to respond with acceptance of a request, ensuring that the terms and timeframes of this are clearly laid out.

Focus HR can support businesses in setting the right processes and documentation in place. For assistance, please contact us (info@focushr.com.au or 4765 3456).




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