Life changes, and sometimes your work hours need to change with it. A new baby, caring for a parent or a health issue can all make a standard roster hard. In Australia, many employees have a legal right to ask for flexible working arrangements. Employers also have clear rules about how they must respond.
This post explains who can make a request and what it should include. It covers the 21 day reply rule, when an employer can say no and what happens in a dispute. The rules come from the Fair Work Act 2009. Some state and territory laws also give rights, and the law changes over time.
What flexible working arrangements are
A flexible working arrangement is a change to how, when or where you work. Section 65 of the Fair Work Act gives examples. They include changes to your hours, your pattern of work and your location of work. Working from home on some days is one example of a change in location.
The right to request sits in the National Employment Standards. These are the minimum standards for employees covered by the national workplace relations system. It is a right to ask and to receive a proper answer. It is not an automatic right to get the change you want.
Who can ask for flexible work
You can make a request if you want the change because of certain circumstances. Section 65 lists them. They include being pregnant, or being a parent or carer of a child of school age or younger. They also include being a carer under the Carer Recognition Act 2010, having a disability or being 55 or older.
The list also covers family and domestic violence. You can ask if you are experiencing it yourself. You can also ask if you are caring for or supporting an immediate family or household member who is experiencing it. A parent returning from leave after a birth or adoption can also ask to work part time to help care for the child.
Separated parents often need to change their hours so they can share care. If you are going through a separation, our post asking if you really need a lawyer to get divorced covers the legal side of ending a marriage. Parenting plans and work rosters often need to fit together. A flexible work request can be part of making that work.
Length of service
Permanent employees need at least 12 months of continuous service with the employer before making a request. Casual employees can also ask in some cases. They must be a regular casual employed over a sequence of periods totalling at least 12 months. They must also have a reasonable expectation of continuing work on a regular and systematic basis.
How to make a request
Your request must be in writing. It must set out the change you are asking for and the reasons for it. Keep it clear and simple. Say what you want, why you want it and when you would like it to start.
It helps to think about the business side before you send it. Explain how the work will still get done. Offer a trial period if that suits you. A practical request is easier for an employer to say yes to.
If you are unwell and need time off rather than changed hours, different rules apply. Our post asking can my boss force me to work if I am sick looks at leave and illness. Keep a copy of every request and reply. Written records make any later dispute much easier to sort out.
The 21 day reply rule
Your employer must give you a written response within 21 days of your request. This is set out in section 65A. The employer can grant the request as asked. They can also agree to a different change after discussing it with you.
The third option is to refuse the request. An employer can only refuse if they have met several conditions first. They must discuss the request with you and genuinely try to reach an agreement. They must also consider the effect a refusal would have on you.
When an employer can say no
A refusal must be based on reasonable business grounds. Section 65A gives examples, and the list is not closed. The change may be too costly, or there may be no capacity to change other staff rosters. It may also be impractical to change other staff arrangements or to recruit new staff.
The Act also lists a likely significant loss of efficiency or productivity. A likely significant negative effect on customer service is another example. The size and nature of the business matter. A small team may have little room to cover a change in one person’s hours.
Small business owners often carry the cost of these decisions personally. Our post asking whether your personal assets are separate from your business covers another area where business structure matters. An employer must still discuss each request with the employee. They must also genuinely try to reach an agreement before refusing.
What a written refusal must include
If your employer refuses, the written response must give the reasons. It must set out the specific business grounds and explain how they apply to your request. It must list other changes the employer would be willing to make, or say there are none. It must also explain your options for resolving a dispute.
What to do if you disagree
You can raise a dispute if your employer refuses or if 21 days pass with no written reply. Section 65B says you must first try to sort it out by talking at the workplace. If that fails, either of you can refer the dispute to the Fair Work Commission. The Commission will first try methods such as conciliation or mediation.
If those methods do not work, the Commission can arbitrate under section 65C. It can decide whether the employer’s grounds were reasonable. It can also order the employer to grant the request or make other changes. Before doing so, it must consider fairness between both sides.
Employment contracts and workplace policies sometimes include terms about flexible work. Contract terms must still sit within the law. Our post on avoiding unfair contract terms explains a related area of commercial law. You can read the full provisions in the Fair Work Commission extract of the flexible working provisions.
State and territory laws
Section 66 of the Fair Work Act says it does not override state or territory laws that give more beneficial flexible working rights. This means some workers may have extra protections under local law. Not every worker is covered by the national system either. Check which rules apply to your job and your state.
Frequently asked questions
Can I ask to work from home?
Yes, if you meet the eligibility rules. A change to your location of work is one type of flexible working arrangement. Your employer can still refuse on reasonable business grounds after following the required steps.
What if my employer ignores my request?
If 21 days pass without a written reply, you can raise a dispute. Try to resolve it at the workplace first. If that fails, you can refer it to the Fair Work Commission.
Can a casual employee ask for flexible work?
A regular casual employee can ask in some cases. You need a sequence of employment totalling at least 12 months. You also need a reasonable expectation of continuing regular and systematic work.
Does my employer have to say yes?
No. The law gives you a right to ask and to receive a proper written answer. Your employer can refuse on reasonable business grounds if they follow the required steps.
This post is general information only and is not legal advice. Employment laws differ between states and territories and change over time. Speak with a qualified lawyer or the Fair Work Ombudsman about your own situation.