The importance of flexible work arrangements for workers and their right to ask for them

When it comes to workplace flexibility, we’ve come a long way in a relatively short time.

The COVID-19 pandemic has forced many industries to re-think the way work is done, and many of us had to quickly adapt to the new landscape of working remotely. But did you know that the right to request a workplace flexibility arrangement is not just a necessity of pandemic restrictions, but a right of workers under legislation?

Though many Australians are employed in industries that made flexible work impossible, for a large number of working Australians, the concept of ‘the workplace’ has taken on a whole new meaning.

For many employees, hybrid working has been a game changer. From saving money and time not having to commute long distances, to being able to better manage childcare and achieve a better work life balance, the benefits of flexible work arrangements vary. Though the pandemic forced us to hit the accelerator on workplace flexibility, employees have had the right to seek flexible work arrangements since 2009 under the Fair Work Act 2009 (Cth).

These categories include:

• Being a parent of or having caring responsibilities for a child who is school aged or younger.
• Having a disability; and
• Being over the age of 55.

Employers can only refuse such a request from these workers on reasonable business grounds.

Changes to the Fair Work Legislation (Secure Jobs Better Pay Act)

Changes to the legislation will take effect from 6 June 2023 when the Fair Work Legislation (Secure Jobs Better Pay Act) becomes operational.

From 6 June 2023, employers will be required to genuinely try and reach an agreement with their employees who fit within the categories provided in the Fair Work Act regarding flexible working requests.

An employer would then need to consult with the employee and genuinely attempt to reach an agreement with them, before either accepting or denying such a request.

Currently, this entitlement gives employees in a number of set categories, who have been employed with the same employer for at least 12 months, the right to request a flexibility arrangement.

An additional amendment needs to be made to the current legislation to remove the restrictive categories currently in the Fair Work Act, which limit who can access these rights. This would provide a legislative right for all employees who have been with their employer for 12-months, to request a flexible work arrangement.

What is reasonable business grounds?

This term has historically been broad, and the legislation of what may constitute reasonable business grounds includes things such as cost, capacity, practicality and efficiency, and the effect of the request on the productivity of the business.

But the recent Fair Work Commission decision in Ms Natasha Fyfe v Ambulance Victoria [2023] FWC 49 (Fyfe’s case) which was handed down on 6 January 2023, has provided some clarity.

Fyfe’s Case

In Fyfe’s case the Commission held that when employers make a decision about a request for flexible working arrangements under the FW Act, they have an obligation ensure their decision is affected by ‘reason and sound judgement’.

Fyfe’s case involved a full time Advance Life Support Paramedic who sought to adjust her hours of work under the FW Act, to change her night shift start and finish times from 6 pm till 8 am instead of from 9 pm till 6 am.

She argued that a change of the start and finish times of her shift would allow her to care of her children while her partner was at work. Her employer argued that this type of shift ‘didn’t exist’ and that they ‘are not currently in a position to offer this level of roster variation’.

Commissioner Johns found that the employer did not properly take into consideration the rostering arrangements available to the business, or in any way attempt to hold discussions with the employee to try to reach an agreement, before deciding unequivocally that this arrangement was not possible.

What is the outcome?

After considering the evidence submitted by both parties, the Commissioner found that there was “simply no reason” why the employer could not have accepted the request and that more could have been done to reach a mutually satisfactory outcome.

What are my rights when it comes to flexible work?

As we continue to recognise that work can be done differently, whether by remote working, flexible start and finish times or with the use of different technology, the introduction of the Secure Jobs Better Pay amendment is a welcome update to the current legislation regulating employees’ entitlements at work.

If a person has been employed for 12 consecutive months and fits into one of the prescribed categories under the Fair Work Act, they have a right to request a flexible working arrangement. Any employer has an obligation to properly take into consideration this request and from 6 June 2023, they will need to consult with their employees in an attempt to genuinely try and reach an agreement regarding the request.

Along with the recent decision in Fyfe’s case, the landscape of flexible work arrangements is slowly shifting, but more needs to be done.