The Fair Work Act 2009 (Cth) contains the National Employment Standards, called the NES. The NES are 10 minimum standards that apply to all national system employees. The NES cannot be excluded by your employment contract or company policy or procedure. One of the NES is the right to request flexible working arrangements. Here is what you need to know.
Who can make a request for flexible working arrangements?
You must have completed at least 12 months of service with your employer before you are entitled to make a request for flexible working arrangements.
You can make a request for flexible work arrangements in any of the following circumstances:
- the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;
- the employee is a carer;
- the employee has a disability;
- the employee is 55 or older;
- the employee is experiencing violence from a member of the employee’s family;
- the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family.
The request might include (but is not limited to) a change in working arrangements from full-time to part-time, changes in hours of work, changes in patterns of work and changes in location of work.
How to make a request
The request must be in writing and:
- include the details of change you are after; and
- the reasons for change.
Your employer must respond within 21 days, your employer may refuse the request on reasonable business grounds.
We recommend asking for a meeting with your employer to discuss the changes you are after, being prepared to compromise if you can and if all else fails, ask your employer to trial the arrangements for say six months.
What if your employer declines the request?
You may be able to dispute the decision under your award, enterprise agreement or contract of employment.
If you believe your employer is taking adverse action against you because you made the request you can commence a general protections dispute while you remain employed. If the conduct is repeated it may constitute workplace bullying and you can make an application to the Fair Work Commission for it to stop.
A refusal to accommodate flexible work by your employer may amount to sex or carer’s discrimination and be actionable.
Important note – if you feel you are being forced to resign because of your employer’s failure to accommodate your request for flexible work please get legal advice. It is much better to dispute the action before you resign.
If you have been denied any of these rights or you have been discriminated against we can help. You can take our eligibility questionnaire on our website at flexible work eligibility.
Further information can be found at Flexing your rights