What to know before denying flexible working requests

The highly anticipated changes that’ll see employees given more power to challenge refusals for flexible work arrangements have officially come into effect. Here’s what employers should know.

Effective 6 June, the new changes will see employees given the ability to challenge any refusal for flexible working arrangements.

Under the amendments, which fall under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, employers are mandated to provide a written response to the request within 21 days, and the response must cover whether or not the employer grants the request.

Alternatively, if following a separate discussion between the employer and the employee, the employer and the employee agree to a change to the employee’s working arrangements that differs from that set out in the initial request, document that agreed change, also in a written response within 21 days.

Refusing a request

Importantly, the employer may refuse the request if they have discussed the request with the employee and genuinely tried to reach an agreement with the employee about making changes to the employee’s working arrangements to accommodate the employee’s circumstances.

Or if the refusal is based on reasonable business grounds.

If an employer denies a request, the written response must explain the grounds for refusal.

What defines ‘reasonable business grounds’?

According to the new framework, what may constitute reasonable business grounds include:

• that the new working arrangements requested would be too costly for the employer;
• that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested;
• that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested;
• that the new working arrangements requested would be likely to result in a significant loss in efficiency or productivity;
• that the new working arrangements requested would be likely to have a significant negative impact on customer service.

“The specific circumstances of the employer, including the nature and size of the enterprise carried on by the employer, are relevant to whether the employer has reasonable business grounds for refusing a request,” the Fair Work Commission (FWC) noted.

“For example, if the employer has only a small number of employees, there may be no capacity to change the working arrangements of other employees to accommodate the request.”

If issues persist

If there is a dispute between an employer and an employee about such requests, the first step is for both parties to attempt to resolve it at a workplace level through discussions between the parties.

“If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the dispute to the FWC,” it said.

“The employer or employee may appoint a person or industrial association to provide the employer or employee (as the case may be) with support or representation for the purposes of: resolving the dispute; or the FWC dealing with the dispute.

“A person may be represented by a lawyer or paid agent in a matter before the FWC only with the permission of the FWC.”