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Change ahead: Employer obligations when considering flexible work arrangement requests

A recent ruling of the Fair Work Commission (FWC) in Fyfe v Ambulance Victoria (2023) may be a sign of what’s to come under the recent Fair Work Act 2009 (Cth) (FW Act) amendments that became law in December 2022.

The National Employment Standards within the FW Act provide:

  • employees with the right to request flexible work arrangements; and
  • employers with the right to reject this request on reasonable business grounds.

The new amendments coming into effect on 6 June 2023 will require employers to discuss requests with the employee, and genuinely try to reach agreement before refusing an employee’s request. The employer would also be required to provide detailed reasons for any refusal and inform the employee of alternative working arrangements the employer would be willing to make instead to accommodate the employee’s circumstances.

The decision in Fyfe v Ambulance Victoria (2023) resolved a dispute about the employer’s refusal of an employee’s request for a flexible work arrangement. The FWC ruled the employer did not have reasonable business grounds to deny an employee’s request for flexible work arrangements while she cared for her dependent child. A factor in the unreasonableness was the employer’s failure to consult with the employee about the request and attempt to reach an agreement before simply rejecting the request. The FWC considered this relevant despite the employer not being obliged under its enterprise agreement to undertake these steps before refusal.

The FWC reached the conclusion that with proper consultation the employer could have reached a reasonable arrangement to accommodate the employee’s carer needs. The FWC also considered it irrelevant that other employees might make similar requests.

Find out more about your rights and obligations in the Employment Law Practical Handbook chapter Flexible work arrangements.

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