The landscape of employment law in Australia continues to shift, with recent amendments to the Fair Work Act 2009 (Cth) significantly expanding the rights of employees to request flexible working arrangements. These changes have important implications for Western Australian employers across all sectors.
Under the amended section 65 of the Fair Work Act, the right to request flexible working arrangements has been extended to all employees who have completed at least 12 months of continuous service. Previously, this right was limited to specific categories of employees, such as parents of school-age children and carers. The expanded right means that any eligible employee can now request changes to their hours, patterns, or location of work.
Critically, the amendments have changed the framework for employer responses. An employer can only refuse a request on reasonable business grounds, and must now demonstrate that they have genuinely tried to reach agreement with the employee on alternative arrangements. The employer's response must be in writing, must explain the reasons for any refusal, and must set out any alternative arrangements the employer is willing to offer.
The Fair Work Commission now has jurisdiction to deal with disputes about flexible work requests. This means that employees who are dissatisfied with their employer's response can apply to the Commission for a determination. The Commission can make orders requiring an employer to grant a request, with penalties for non-compliance.
For Western Australian employers, particularly those in industries with traditional work patterns such as mining, construction, and manufacturing, these changes require a fundamental review of workplace policies and management practices. The days of blanket refusals of flexible work requests are over.
We recommend that employers update their flexible work policies to reflect the new legislative requirements, train managers on how to assess and respond to flexible work requests, establish a clear process for documenting decisions and any alternative arrangements offered, and seek legal advice before refusing any request to ensure compliance with the new framework. The cost of getting it wrong can include Fair Work Commission orders, adverse action claims, and reputational damage in an increasingly competitive labour market.