As an employer, you must give employees a written response to the request within 21 days, stating whether you grant or refuse the request.
You may refuse the request only on reasonable business grounds. If you refuse the request, the written response must include the reasons for the refusal.
What are the employer’s options?
The NES doesn’t require an employer to agree to a request for flexible working arrangements, but refusal must be made on reasonable business grounds, as outlined below.
Employers and employees are encouraged to discuss their working arrangements and, where possible, reach an agreement that balances both their needs.
Factors that may be relevant in defining reasonable business grounds could include:
- the effect on the workplace and the employer's business of approving the request, including the financial impact of doing so and the impact on efficiency, productivity and customer service
- the inability to organise work among existing staff
- the inability to recruit a replacement employee
- the practicality or otherwise of the arrangements that may need to be put in place to accommodate the employee's request.
Example
Greg would like to start work at 10.00am, four days a week, to enable him to take his three year old son to pre-school. He submits a written request to his employer setting out the reasons for requesting the change in hours. His employer considers the request but is unable to agree to the changes, as Greg would miss an important nationwide teleconference each morning.
However, instead of simply refusing the request, Greg's employer discusses the situation with him. They agree to an arrangement where Greg will start work at 10.00am four days a week and participate in the teleconference by phone hook-up before he leaves home, while attending in person for the most important weekly agenda-setting meeting.
Greg's employer gives him a written response, setting out details of the reasons for the refusal of the initial request as well as a statement of the revised agreed arrangements.
What happens if there’s a dispute?
If the parties to the dispute have agreed in an employment contract, enterprise agreement or other written agreement to seek mediation in case of disagreement, the Fair Work Act 2009 empowers Fair Work Australia or some other person to deal with the dispute.
The Fair Work Act 2009 allows State and Territory laws to continue to apply to employees where they provide more beneficial entitlements than the NES in relation to flexible work arrangements.