As we have now entered 2019, the Modern Awards have included new rules around requesting flexible working arrangements which came into effect from 1 December 2018.
Section 65 of the Fair Work Act 2009 (the Act) discusses Flexible Working Arrangements included in the 10 National Employment Standards. Section 65 of the Act goes into depth of who can put in a flexible working arrangement, how the request needs to be put in to the employer, how the employer must respond and examples of reasonable business grounds that an employer can refuse the request on.
The Modern Awards now include a clause to be read in addition to Section 65 of the Act.
Before responding to a request for flexible working arrangements, the employer must discuss the request with the employee and genuinely try to come to an agreement in regards to the change in work arrangements that will reasonably accommodate the employees circumstances.
This discussion around trying to genuinely come to an arrangement will need to consider:
a) The needs of the employee arising from their circumstances
b) The consequences for the employee if changes in working arrangements are not made
c) Any reasonable business grounds for refusing the request
As per Section 65 of the Act, you as the employer need to respond in writing within 21 days of the employees request either granting or refusing the employee’s request.
The Modern Award update goes into further detail concerning what the employers written response must include if refusing an employees flexible working arrangement request. The written refusal must include details of the reasonable business ground(s) on why the request is being refused and how those grounds apply.
If the employer and the employee can not agree on a change in working arrangements under the new clause, the written response must:
i) State whether or not there are any changes in working arrangements that the employer can offer the employee so as to better accommodate the employee’s circumstances; and
ii) If the employer can offer the employee such changes in working arrangements, set out those changes in working arrangements.
If a different change in an employees working arrangement is agreed upon instead of what the employee initially requested, the written response from the employer must include a response to the employees request setting out the agreed change(s) in working arrangements.
If an employee does not believe that the employer has discussed the request and responded to the request in the way set out in the modern award, they can go down the Dispute Resolution clause under the Award.
If you have any queries relating to this change, please give us a call on 1300 760 050 or email us at This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Written by Laura Quinlan, HR Consultant