How to Request Flexible Working Arrangements from Your Employer in Australia

Who has the right to request flexible working arrangements in Australia?

The National Employment Standards give certain employees a statutory right to request flexible working arrangements. This is different from simply asking informally to work from home or change your hours. When the Fair Work Act eligibility and request requirements are met, the employer must follow specific rules when considering and responding to the request.

Full-time and part-time employees can make a statutory request after completing at least 12 months of continuous service with the same employer immediately before making the request.

A casual employee can also qualify if they have worked for the same employer regularly and systematically for at least 12 months and have a reasonable expectation of continuing to work for that employer on a regular and systematic basis.

What reasons qualify for a statutory flexible work request?

You can make a request under the Fair Work Act if you need a change to your working arrangements because one or more of the following circumstances applies to you:

• You are pregnant.
• You are the parent of, or have responsibility for the care of, a child who is school age or younger.
• You are a carer within the meaning of the Carer Recognition Act 2010.
• You have a disability.
• You are 55 years old or older.
• You are experiencing family and domestic violence.
• You provide care or support to an immediate family member or household member who is experiencing family and domestic violence.

The requested change must relate to the circumstance that gives you the right to make the request.

What flexible working arrangements can you request?

Flexible working arrangements can involve changes to your hours, pattern or location of work. Examples identified by the Fair Work Ombudsman include changing start and finish times, reducing or rearranging hours, split shifts, job sharing and working from home or another location.

The legislation does not limit requests to working from home. The arrangement should address the particular flexibility you need and can involve more than one type of change.

How to write a flexible working arrangements request

A statutory request must be in writing. It must set out the details of the change you want and explain the reasons for the requested change.

Describe exactly what you want to change

Be specific about the proposed arrangement. For example, rather than asking generally for more flexibility, specify the days you want to work from home, the start and finish times you are requesting, a proposed reduction in hours, or the pattern of work you want to adopt.

Explain why you need the arrangement

Explain how the requested change relates to the circumstance that makes you eligible. For example, you may need different hours to care for a school-aged child, a change in work location because of disability, or adjusted working arrangements because you are pregnant.

Should you state how long the arrangement will last?

The Fair Work Ombudsman's best practice guidance recommends specifying how long the proposed arrangement is intended to last. This can make the request clearer, particularly where the change may only be required for a defined period.

Do you need documents or evidence with your request?

The core statutory requirements for the request are that it is in writing, describes the requested change and explains the reasons for it. The Fair Work Ombudsman's request template recommends identifying the eligibility circumstance that applies to you so the employer can understand why the request is being made under the Fair Work Act.

Providing relevant practical information can also help your employer assess the proposal, but you should not include unnecessary sensitive personal information. This is particularly important for requests involving disability, pregnancy or family and domestic violence.

Where do you submit a flexible working request?

The request is made directly to your employer rather than to the Fair Work Ombudsman or Fair Work Commission. Follow any workplace process for flexible work requests, such as sending the request to your manager or human resources team.

The Fair Work Ombudsman provides a free request template and example letters. A written electronic request such as an email can also provide a record of the request and the date it was sent.

How long does an employer have to respond?

Your employer must respond in writing within 21 days after receiving the request. The response must say whether the request is approved or refused.

You and your employer may agree on an arrangement that is different from the arrangement you originally requested. If that happens, the employer must set out the agreed changes in writing within the same 21-day response period.

Does an employer have to approve a flexible work request?

No. The statutory right is a right to request flexible working arrangements and to have the request dealt with according to the Fair Work Act. It does not automatically guarantee that the exact arrangement requested will be approved.

However, an employer cannot simply reject an eligible request without following the required process. A refusal must be based on reasonable business grounds, and additional procedural requirements apply before the employer can refuse.

What must an employer do before refusing a request?

Before refusing an eligible request, the employer must discuss the request with the employee, genuinely try to reach an agreement about changes that could accommodate the employee's circumstances, and consider the consequences for the employee if the request is refused.

This means the process can involve discussing alternatives. For example, if the exact days requested are not workable, the employer and employee might consider different days, altered start and finish times, a partial work-from-home arrangement or another form of flexibility.

What are reasonable business grounds for refusing flexible work?

Whether a business ground is reasonable depends on the circumstances, including the size and nature of the employer's business, the employee's role and the proposed arrangement. Examples identified under the Fair Work framework include:

• The requested arrangement would be too costly.
• Other employees' working arrangements cannot be changed to accommodate the request.
• It would be impractical to change other employees' arrangements or recruit new employees to accommodate the request.
• The arrangement would be likely to cause a significant loss of efficiency or productivity.
• The arrangement would be likely to have a significant negative impact on customer service.

An employer cannot rely merely on a general preference against flexible working. The stated grounds must apply to the particular request and circumstances.

What must a written refusal include?

If your employer refuses the request, the written response must explain the reasons for refusal, including the reasonable business grounds relied on and how those grounds apply to your request.

The response must also identify any other changes to your working arrangements that the employer is willing to make to accommodate your circumstances, or state that there are no such changes. It must include information about the possibility of resolving a dispute through the Fair Work Commission.

What if your employer does not respond within 21 days?

If more than 21 days have passed without a written response, first try to resolve the issue directly with your employer. If the dispute cannot be resolved at the workplace, the Fair Work Commission can deal with certain disputes about statutory flexible working arrangement requests.

For an eligible request made under the relevant Fair Work Act provisions, an employee may apply to the Commission where the employer has refused the request or has not provided a written response within 21 days. Form F10C is used to apply to resolve a dispute about flexible working arrangements.

How does a Fair Work Commission flexible work dispute work?

Before applying to the Fair Work Commission, the employee should have attempted to resolve the dispute through discussions with the employer. The Commission generally tries to resolve the dispute through conciliation first.

If the matter is not resolved through conciliation, the Commission can in appropriate circumstances deal with it by arbitration and make binding orders. Depending on the case and statutory requirements, orders can address whether reasonable business grounds existed or require specified changes to working arrangements.

An employee applying with Form F10C needs information about their employment, the flexible work request, the employer's response if one was provided, attempts made to resolve the dispute and the outcome sought. The Commission also requires a copy of the written request and, if available, the employer's written response.

Can your employer take action against you for making a request?

The Fair Work Commission states that an employer must not take adverse action against an employee because the employee made a flexible working arrangements request. For example, an employer cannot dismiss an employee or change their role for the worse because they exercised the right to make the request.

What if you do not meet the statutory eligibility rules?

You can still discuss flexible work with your employer even if you do not have the statutory right to make a request under section 65 of the Fair Work Act. Employers and employees can voluntarily agree to flexible working arrangements, and the Fair Work Ombudsman recommends best practice approaches to flexibility more broadly.

An informal or voluntary request is different from a statutory request because the specific Fair Work Act response and refusal rules described in this procedure apply to employees who meet the statutory requirements. Awards, enterprise agreements, employment contracts, workplace policies and state or territory laws may also provide additional or more beneficial rights.

Is a flexible working request the same as an individual flexibility arrangement?

No. A request for flexible working arrangements under the National Employment Standards is different from an individual flexibility arrangement. An individual flexibility arrangement is a separate mechanism used to vary how certain terms of an award or registered agreement apply to an individual employee and has its own legal requirements.