Under the Fair Work Act 2009 (Cth) (FW Act), eligible employees may request flexible working arrangements where they have at least 12 months' service. After undertaking the required process, employers must respond in writing within 21 days, either approving the request or setting out the reasonable business grounds for refusing, alongside any available alternatives.
Some key considerations when responding to a flexible working arrangement request include:
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Issue |
Consideration |
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Who is the employer? |
The labour hire agency is the employer, not the host. |
|
Has the employee been employed for 12 months or more? |
Eligibility is based on the employee's length of service with their employer, not the length of placements with hosts. This includes regular and systematic casuals. |
|
Can we consider host requirements? |
Labour hire providers can consider the impact on their business and that of the host client, noting that the grounds set out in the FW Act include matters such as whether the request would have a significant negative impact on customer service, and cost implications for the employer.
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In this article, we discuss two recent Fair Work Commission decisions that provide useful insight into how flexible working arrangement requests under the FW Act are assessed in practice. They also underscore the need for employers to consider the specific facts of each request and to ensure that they meet all of the requirements of the FW Act in assessing and responding to requests.
Parliament has deferred debate on the Victorian Government’s proposed new right to work from home laws, which were proposed to commence in July 2027.
Meanwhile, the Fair Work Commission is proposing to vary the Clerks - Private Sector Award 2020 to include a new clause giving employees a right to request work from home arrangements.
Keeping on top of such changes is crucial, as employers may soon find themselves navigating requests under multiple pathways, with different eligibility criteria and assessment requirements depending on the source of an employee’s entitlement.