From 1 December 2018, new award provisions relating to flexible working arrangements will take effect.[1]

Current obligations

Under the Fair Work Act 2009 (Cth) (FW Act), an employee can ask for flexible working arrangements where the employee:

  • is a carer;
  • has a disability;
  • is 55 years of age or older;
  • is a parent of a child who is school age or younger; or
  • is experiencing domestic violence or is providing care for a family/household member experiencing domestic violence.

A request must be in writing,[2] and an employer must provide a written response to the employee’s request within 21 days.[3]

An employer may refuse a request made by an employee for a flexible working arrangement only on “reasonable business grounds”,[4] such as where the flexible arrangements would be too costly for the employer,[5] or where they would likely result in a significant loss in efficiency or productivity.[6]

New award provisions

The new award provisions add the following further key obligations/requirements:

  • After an employer receives a request for flexible working arrangements under the relevant provisions of the FW Act (as discussed above), the employer must discuss the request with the employee, and “genuinely try to reach agreement on a change in working arrangements”.[7]
  • This discussion must take place before the employer provides their written response to the employee’s request (being within 21 days of receiving the request).[8]
  • Where no agreement can be reached, the employer must respond in writing to the employee, notifying the employee of the reasons for the refusal, (including the business grounds and how they apply) and any alternative arrangement the employer considers it could offer to better accommodate for the employee’s circumstances.[9]

The insertion of these provisions into awards also means that employers may be subject to penalties for breaches of the award, if they fail to comply with the relevant obligations.