Flexible working arrangements and the law
This help sheet has been prepared by Moores, not-for-profit legal advisers.
Following a review of the Fair Work Act 2009 (Cth), the Federal Government passed the Fair Work Amendment Act 2013 (Cth). The second tranche of amendments came into effect on 1 January 2014. These included changes to who can request flexible work arrangements and guidance about when a request for flexible work arrangements can be refused on "reasonable business grounds" under the National Employment Standards (NES).
Who can request flexible working arrangements?
Since 1 January 2014, employees who have a right to request flexible work arrangements include those who:
- are a parent or have responsibility for the care of a child who is of school age or younger;
- are a carer within the meaning of the Carer Recognition Act 2010 (a definition follows);
- have a disability;
- are 55 or older;
- are experiencing violence from a member of the employee's family; or
provide 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.
In addition, the Fair Work Amendment Act provides greater clarity as to when an organisation may safely refuse a request for flexible work arrangements on reasonable organisation grounds. These include grounds that:
- the new working arrangements requested would be too costly for the employer;
- there is no capacity to change the working arrangements of other employees to accommodate the requested working arrangements;
- it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
- the new working arrangements requested would be likely to result in a significant loss in efficiency or productivity; and
- the requested working arrangements would be likely to have a significant negative impact on customer service.
Definition of "carer"
Under the Carer Recognition Act 2010 (Cth), the definition of "carer" is as follows:
A carer is an individual who provides personal care, support and assistance to another individual who needs it because that other individual:
- has a disability; or
- has a medical condition (including a terminal or chronic illness); or
- has a mental illness; or
- is frail and aged.
An individual is not a carer in respect of care, support and assistance he or she provides:
- under a contract of service or a contract for the provision of services; or
- in the course of doing voluntary work for a charitable, welfare or community organisation; or
- as part of the requirements of a course of education or training.
An individual is not a carer merely because he or she:
- is the spouse, de facto partner, parent, child, other relative or guardian of an individual who requires care; or
- lives with an individual who requires care.