Navigating flexible work arrangements: a guide for employees and employers

In today's hybrid work environment, the traditional 9-to-5 schedule is evolving, with more employees seeking flexible working arrangements to better balance their personal and professional lives.

The COVID-19 pandemic forced the world into hybrid working and gave employees a taste of better flexibility, reduced commuting and more time with their families.

It is now common to see employees request hybrid working arrangements, and consider those sorts of entitlements when deciding between employment opportunities.

Equally, employers have capitalised on hybrid arrangements and reduced their overheads while maintaining productivity. A 2022 survey of employers by the Australian HR Institute found 43% of employers believe hybrid work arrangements have a positive effect on productivity, and only 10% believe they have a negative effect.

In 2022, the Fair Work Legislation Amendment (Secure Jobs, Better pay) Act 2022 amendments to the Fair Work Act strengthened flexible work entitlements. The amendments are intended to strengthen employee rights, increase transparency and empower the Fair Work Commission to deal with disputes about a request.

Who can request flexible working arrangements?

Eligible employees can request flexible working arrangements. To be considered an ‘eligible employee’ you must be a full-time or part-time employee who has worked for the same employer for at least 12 months, and be:

• A parent or caregiver of school-aged (or younger) children
• A carer under the Carer Recognition Act 2010
• A person with disabilities
• Aged 55 years or older
• Pregnant
• Experiencing family and domestic violence, or
• Providing care or support to an immediate family or household member experiencing family and domestic violence.

Can a casual employee request flexible working arrangements?

Casual employees are only entitled to request a flexible work arrangement if they have worked for the same employer for at least 12 months on a regular basis, and have a reasonable expectation of continuing employment on a regular and systematic basis.

Examples of flexible work arrangement requests

Care for a school-aged child: Jacinta has worked for her employer for three years and wants to request to start work at 9.30am, rather than 9:00 am, so that she can drop her child off at kinder. Jacinta is eligible to make a flexible working arrangement request.

Aged 55 or older: Rishi is 61 years old, and has worked in the same job for 15 years. Rishi is not ready to retire yet, but due to some recent health issues, he would like to reduce his hours to work three days per week, to have more of a work-life balance and focus on his health. Rishi is eligible to request a flexible working arrangement.

Pregnant casual employee: Ana has worked casually for the same employer for two years. Ana is pregnant, and would like to finish work early on Thursday afternoons to attend regular medical appointments. Even though Ana is a casual worker, she is eligible to make a request as she has worked for the same employer for more than a year and has a reasonable expectation of continuing to work there regularly.

Family and domestic violence: Nathan’s sister has been experiencing family and domestic violence. As Nathan is her main support person, he would like to work from home on Tuesdays to support his sister at legal appointments. As Nathan has worked at the same company for a year, he is eligible to make a flexible working arrangement request.

How to request a flexible working arrangement

To make a flexible working arrangement request, employees must:

1. Submit the request in writing
2. Clearly explain what changes are being requested, and
3. Explain the reasons for the requested change.

There are some helpful templates on the Fair Work website. 

What are employer responsibilities in responding to hybrid working requests?

Upon receiving a request, employers must respond in writing within 21 days. The response should indicate whether the request is approved or refused. Employers and employees can negotiate alternative working arrangements, with the agreed-upon changes confirmed in writing within 21 days.

Refusal of a request can only occur on reasonable business grounds, considering factors such as cost, practicality, and potential impact on efficiency or productivity. The employer's circumstances, including business size and nature, will be relevant.

When refusing a request, the written response must include:

• The reasons for the refusal, including (for example) the particular business grounds for refusing the request, and how those grounds apply to the request
• An explanation of why the request is refused, and
• An explanation of the changes the employer is willing to make to accommodate the employee’s circumstances, or state that there are no such changes, and
• A statement explaining the employee’s entitlement to dispute the refusal.

Fair Work Commission dispute resolution process

If a dispute arises, the employer and employee must first genuinely try to resolve the dispute at the workplace level.

The recent amendments to the Fair Work Act created the ability for an employer or an employee to refer a dispute about a flexible work arrangement request to the Fair Work Commission.

Once referred, the Commission will attempt to resolve the dispute through mediation or conciliation. If the dispute remains unresolved, the Commission can arbitrate a dispute, a formal process which involves the Commission making a final decision as to how the dispute should be resolved. This could include ordering that the flexible work arrangement request be granted.

If the Commission makes an order, breaching that order can result in significant penalties for an employer.

Supporting flexible working arrangements

Best practice employers have processes for managing and considering requests for flexible working arrangements. This includes developing workplace policies, providing training, fostering a supportive culture and investing in technology to facilitate flexible work.

Flexibility in the workplace is becoming increasingly important, benefiting both employees and employers. By understanding the rules and processes surrounding flexible working arrangements, companies can create a more inclusive and adaptable work environment, ultimately fostering happier and more productive teams.

If you are experiencing a dispute in your workplace over flexible working arrangements, contact us to speak with one of our experienced employment lawyers about your rights and legal options.