Member assistance

Under s.65 of the Commonwealth Fair Work Act, an employee is entitled to apply for a flexible work arrangement if they are:

• pregnant 
• aged over 55 
• living with a disability 
• a carer under the meaning of the Carer Recognition Act 
• a parent, or has the responsibility for the care of, children of school age or younger 
• experiencing domestic violence from a close relative, member of the employee’s household or a current or former intimate partner
• providing care or support to a member of the employee’s immediate family, or a member of the employee’s household who requires care or support because the member is experiencing violence from a close relative, member of the employee’s household or a current or former intimate partner.

Requests must be made in writing, and can be refused on “reasonable business grounds.” The reasons for the refusal must also be given in writing, within 21 days.

Where the employer refuses the request, the written response must include:

• details of the reasons for refusal including the particular business grounds and how they apply to the request and
• either
  • set out an alternative change to accommodate the employee’s circumstances that the employer would be willing to make or
  • state that there aren’t any such changes that can be made , and set out the information regarding resolution of disputes.

Reasonable business grounds can include:

Arguments on “reasonable business grounds” can include:

• the cost of the requested arrangements
• impact on other employees' working arrangements
• the practicality of changing other employees’ working arrangements or hire new employees to accommodate the request
• the request would result in a significant loss of productivity or have a significant negative impact on service provision.

Your Award, EBA or workplace policies and procedures may contain more information on flexible work arrangements beyond these minimum standards. 

Please note that if you are needing changes to your role because of work-related injury or illness, you should seek specific advice from ANMF. 

Recent government reforms

Parliament has recently passed reforms to flexible work arrangements legislation.

These reforms strengthen the obligation on the employer to negotiate with the employee in relation to their flexible work arrangement request, and come into effect from 6 June 2023.

A new s.65A of the Fair Work Act 2009 (Cth) will take effect on that date.

This provides that, in order to refuse the request, the employer must have discussed the request with the employee, and genuinely tried to reach an agreement with the employee.

The request can still be refused on reasonable business grounds.

The changes also empower the Fair Work Commission to deal with a flexible work arrangements dispute, rather than being reliant on EBA clauses to hear such disputes.

The changes also introduce dispute resolution mechanisms that enable the Fair Work Commission to make orders when a request is refused, or in the event an employer has not responded with the 21 day timeframe.

These orders may include orders that the request be granted, or that other specified arrangements be put in place. They may also include whether an employer has reasonable business grounds in refusing a request. 

SNAPSHOT: The difference between “reasonable adjustments and “flexible work arrangements” 

1. A “flexible work arrangement” allows a worker caring for school aged children, living with a disability or in other particular circumstances to request changes to work arrangements such as hours and location.
2. A “reasonable adjustment” is a modification to enable a worker living with a disability to perform their role. 

 They may overlap, and the arguments used by employers in “defending” these requests may be similar. 

While flexible work arrangements cannot be refused on medical grounds, your employer may require medical information if applying on the grounds of a disability, to show that the illness or injury cited meets the definition of a disability.

Confidentiality

Many people are, understandably, reluctant to provide medical evidence to employers. 

S.107 of the Equal Opportunity Act 2010 (Vic) prohibits the request of discriminatory information, while the Health Privacy Principles in schedule 1 of the Health Records Act 2001 (Vic) provides that medical information must be used only for the purpose for which it was collected, and held securely. 

ANMF STRONGLY advises that you contact us before presenting medical evidence to your employer. ANMF can advise on what information, if any, is required. It can be advisable to provide information if requested after the initial application.

ANMF can assist by: 

1. Providing advice on legislation, workplace policies and EBA provisions around Flexible Work Arrangements 
2. Provide advice relating to completing your application for a flexible work arrangement or a reasonable adjustment request; 
3. Provide advice regarding provision of medical and other evidence with your application;
4. Provide advice about the reasons for a refusal of your application – are they genuinely “reasonable business grounds?”; 
5. Provide advice when the procedures for response and consultation set out under the Fair Work Act and/or your EBA are not followed;
6. Provide representation at meetings regarding your application and communicate with your employer about aspects of your Flexible Work Arrangement 
7. In the event of continued refusal (Remember: the purpose of this guide is to help avoid it getting that far), the ANMF can advise and assist on dispute resolution pathways. 

1. Communicate with your workmates. A team approach may assist in getting your request approved. For example, another workmate may be happy to work more nightshifts.
2. Keep lines of communication open with your employer. You may be able to formulate an informal flexible work arrangement just by speaking with your manager. However, seek a written record of the outcome, in case there is a change of managers in the future. 
3. Ask for the arrangement that best suits you and your family. Consider this carefully. 
4. Think about how long you would like the arrangement to continue and the reasons why. Shorter FWA arrangements tend to be more likely to be accepted while employers may be more reluctant to approve long-term FWAs. Please note that all FWAs are reviewable and cancellable..
5. Be prepared to negotiate. Consider some “least worst” possible options in the event of a first refusal. Reflect on what “flexible” means.  The goal is to come to an arrangement that will work for both parties.
6. Present to your employer what you CAN do rather than simply focusing on what you CAN’T. For example, if you apply for an FWA on the basis you cannot work Thursday, present a list of Sunday-Wednesday, Friday and Saturday shifts that you CAN do. 
7. Be sure you make the request in writing, and obtain the employer’s formal written answer to your application, within the 21 day deadline set out under s.65 of the Fair Work Act.
8. Document everything!

Consider what arrangement works best for you and why.

BUT

Be prepared to be flexible, and negotiate.

Showing a willingness and openness to work within your capacity will go a long way.

In the event of the refusal of a flexible work arrangement, ANMF can raise a dispute with the Fair Work Commission under the dispute clauses of your EBA, or (from June 6) directly, under the new dispute resolution provisions for flexible work arrangements outlined earlier.

ANMF can also advise on further actions, such as actions in discrimination on the basis of disability. 

Action can also be taken in the Fair Work Commission under s.351 of the Fair Work Act 2009 (Cth) for direct discrimination, or adverse action because of your assertion of a workplace right, in this case your right to seek a flexible work arrangement.

ANMF can provide advice, or referral if required, on these options. 

Flexible Work Arrangements application template letter

<Date>

Private and confidential

Name
Position
Health Service
Ward/Unit

Dear <Manager>,

Re: Request for flexible working arrangements

I would like to request under <section 65 of the Fair Work Act 2009 (the Act) or under clause <xx> of the <xxx Agreement> to work a flexible work arrangement that is different to my current working arrangement.

I am making this request as <one of the allowable options eg a person responsible for the care of a child school-aged or younger, a person with a disability etc.>

I can confirm that I have worked continuously as an employee of this organisation for the last 12 months and am employed on a <full time/part time/ casual> basis.

I would like to work <what arrangement is being sought >. This would mean that I would be available to work <detail availability>

These changes will assist me in <why will this help>

I would like this working arrangement to start <date>.

I believe that the effect on the organisation and my colleagues can be reasonably accommodated  <reasons>.

I would appreciate your response to this request, in accordance with the <Act or Agreement>, within 21 days of today's date.

I am happy to discuss this matter at a time that is convenient. Please contact myself or ANMF (Vic Branch) Industrial Relations Organiser <name> by email on records@anmfvic.asn.au

Yours sincerely,                                                             

<Members Name>

Flexible Work Arrangements application example letter  

<Date>

Private and confidential

Name
Position
Health Service
Ward/Unit

Dear <Manager>,

Re: Request for flexible working arrangements

I am writing to formally request a flexible work arrangement as provided for by s.65 of the Fair Work Act 2009 (Cth) as a person responsible for the care of a child aged school age and under.

I can confirm that I have worked continuously as an employee of this organisation for the last 12 months and am employed on a full-time basis.

I would like to request that I not be rostered on Thursday and Friday AM shift as I am unable to access childcare on those days. I would like this arrangement to start as soon as possible.

I am available for the afternoon and nightshift on those days as my partner is available to provide care. Childcare is organised for Mondays, Tuesdays and Wednesdays, meaning I am available for any shift on those days, and weekends.

I am hoping that a willingness to work nightshift on Thursdays and Fridays will minimise the impact on the ward, as it will take pressure off rostering those harder-to-roster shifts. I also hope to be able to assist those with similar flexible work requests in due course by returning to the 24 hour-seven-day-a-week roster when my circumstances change.

I would appreciate your response to this request, in accordance with s.65 of the Fair Work Act 2009 (Cth), within 21 days of today's date.

I am happy to discuss this matter at a time that is convenient. Please contact myself or ANMF (Vic Branch) Industrial Relations Organiser <xxx> by email on records@anmfvic.asn.au

Yours sincerely,                                                             

<Members Name>