Flexible working arrangements

Public news

Under the Fair Work Act, an employee is allowed to make a request for flexible working arrangements in writing provided that they fall into a certain category such as having a disability or being over 55 years old.

An employer has an obligation to consider the request and to only reject based on legitimate business grounds. This must be done within 21 days.

This can include such things as the cost or the capacity to change other employee working arrangements to cover this.

Recently, a decision was made by the full bench of the Fair Work Commission regarding a request for more flexible working arrangements, that being to work 10 hour shifts over 4 days per week as opposed to 8 hour shifts over 5 days per week in order to help him transition to retirement. The working arrangement was to be reviewed in 12 months.

This request was rejected as the employer stated it would raise work health and safety risks due to overtime and call backs being an inherent duty of his job. Additionally the employer stated the granting of the request would create an unreasonable financial burden as they would be required to pay the full salary as well as paying the usual “commuted overtime” which was a prepayment allowance which covers regular incidences of overtime.

Initially, the Commission found it was unreasonable for the employer to have rejected the employee’s request. The employer then appealed, however the Full Bench of the Commission dismissed the appeal and agreed that the decision to reject the request was unreasonable.

What this case highlights for employers is:

  • The need to ensure all reasonings for any decision to not accept a request for flexible working arrangements is given within 21 days as the employer in the case attempted to raise additional grounds in the appeal that weren’t included in the initial rejection.
  • To consider if the flexible arrangements may be reviewed (the worker in this case suggested a review after 12 months)
  • To determine if there would be a substantial change in hours worked or able to be worked. In the case, using a 17 day working period, the worker already worked on average 9.5-9.8 hours per shift anyway and whilst the amount of commuted overtime able to be performed was substantially reduced (68 hours down to 28 hours in the 17 days), on average the worker only did 8 hours and 20 minutes per week, which was still below the overtime he could still perform working the 4 shifts a week.

Under the 4 yearly review of modern awards the onus on an employer to provide reasons as to why they will not allow an employee’s application for flexible working arrangements will be made more stringent, so it is of even more important for an employer to be clear and detailed in any rejection of a request for flexible working arrangements.

If you have any enquiries relating to flexible working arrangements please contact the MTA on (08) 8291 2000 or email us by clicking here.