Be Clear About Flexible Working Arrangements


Flexible working arrangements are often requested to allow employees to balance the responsibilities between work and personal circumstances.

The National Employment Standards (NES) underpins all awards and agreements within the Fair Work System. Generally speaking, the NES sets out the basic terms and conditions of employment in Australia.

One of these conditions is the right for employees to request flexible working arrangements and is available to:
‘    Employees with carer responsibilities
‘    Parents or guardians of school-aged children or younger
‘    Employees with a disability
‘    Employees who are 55 years or older
‘    Employees who are experiencing family violence or who are caring/supporting a family or household member who is experiencing family violence.

The employee must also meet the following criteria to be able to access their right to request flexible working arrangements:
a)   Full time or part time employees must have completed at least 12 months of continuous service with the business before making a request.
b)   Casual employees must be a longterm employee of the business and should be seen as regular and systematic, with at least 12 months of service. This means that the casual has a reasonable expectation of continuing their employment with you.

How an employee should request flexible arrangements

An employee should make a request for flexible working arrangements in writing to the employer and set out details of the changes which are to be sought and the specific reasons for the change. An employer is then required to provide a written response within 21 days regarding whether or not the employer grants or refuses the request.

Refusal of flexible working arrangements

An employer may only refuse the request for flexible working arrangements on reasonable business grounds. All refusals must be made in writing and provided to the employee within 21 days of receiving a request and furthermore, outline the reason for the refusal to the change in working arrangements. An employer must outline the reason for a refusal or they are in breach of the Fair Work Act.

It is important that all refusals for flexible working arrangements take into account reasonable business grounds. Some factors which you could consider include:

‘    The effect on the workplace and the employer’s business if the request is approved
‘    The financial impact of flexible working arrangements
‘    The impact on efficiency, productivity and customer service if flexible working arrangements are used
‘    If the business will be unable to organise work among existing staff
‘    If the business is unable to recruit a replacement employee to cover the changes in the workplace
‘    The practicality or other arrangements that may need to be put into place to accommodate the employee’s request.

Please note that it is important to consider all requests for flexibility seriously and, rather than fully refusing the request, attempt to discuss the working arrangements and negotiate an arrangement which will benefit both the needs of the employer and the employee.

Can a refusal be challenged?

An employer must include reasons in the response for refusing a request for flexibility. It is a contravention of the Fair Work Act 2009 if employers do not provide a reason.

While there is no requirement for an employer to agree, the Fair Work Act does allow the Fair Work Commission to dispute if reasonable business grounds were considered.

Employees may have access to discrimination legislation if they feel they are being discriminated against by the employer’s handling or refusal of the request.

Types of Flexible working arrangements

Flexible working arrangements take into consideration a number of different factors such as changes in hours and patterns of work.

Changes in hours of work may incorporate a reduction in the hours the employee works per week, leading them to part time or casual employment status or it may include changing the start and finish times of an employee shift. Changing patterns of work may include splitting shits for your employees where one employee works the morning whilst another works the afternoon to allow for flexibility.

Part time employment:  Part time employment is a permanent position that is less than 38 hours per week, and employees must have set hours and days in which they work. Any hours worked over the agree amount within a contract is considered to be Overtime. Additionally, part time employees will also receive a proportionate amount of annual leave and personal carer’s leave.

Casual Employment: Casual employees offer flexibility for the employee and the business. Their shifts may change and alter week to week along with the hours they are required to work. Casuals may be systematic and regular, indicating they have a reasonable expectation of continuing employment with a business, however due to being paid a higher rate they do not accumulate annual or personal carer’s leave entitlements.

* Vanessa Rengger is Marketing Director of Hair and Beauty Australia (HABA).


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