Q&A: Flexible working arrangements for WA employees

The law recognises that employees often need additional flexibility in things like their hours, pattern, or location of work because of their personal circumstances. We call these flexible working arrangements.

For example, if you care for a school age child you might request a different start or end time so you can take or pick up your child from school. Another example is if your child’s school is far away from your work then you might request to work from home on the days you need to pick your child up so you can make it to the school in time.

If you have a disability that requires regular doctors’ appointments every Monday morning you might request to only work afternoons on Mondays. Or if you have a disability that makes it difficult to work long hours you might request to work the same number of hours but spread over more days.

These are just examples and what flexible work arrangements an employee might ask for depends on their situation and needs.

There are rules for when employees can make requests for flexible work arrangements and how they are made. Employers can only reject flexible work arrangements requests in limited situations.

To request flexible work arrangements, you need to fit into one of these situations:

• be a parent of or having responsibility for the care of a child who is of school age or younger;
• be a carer (as defined by the Carer Recognition Act 2010 if national system or the Carers Recognition Act 2004 if state system);
• have a disability;
• be 55 or older;
• be experiencing violence from a member of the employee’s family;
• provide 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 the member’s family; or
• be a parent, or someone who has responsibility for the care, of a child and is returning to work after taking leave in relation to the birth or adoption of the child may request to work part-time to assist the employee to care for the child.

Permanent employees need to have 12 months of continuous service with their employer before they can make a request.

Casual employees need to have been employed on a regular and systematic basis for a continuous period of 12 months before they can make a request.

Flexible work arrangements requests must be in writing. This could be a letter or an email to your employer, for example.

The written request needs to set out details of the change sought and of the reasons for the change. State system employees also need to explicitly state in the written request what situation in the list above made them eligible (for example, 55 or older, has a disability etc).

Employers must respond to a written flexible work arrangements request within 21 days and state if they grant or refuse the request.

Employers can only refuse if they discuss the request with you, genuinely try to reach agreement with you, and have regard to the consequences of the refusal for you. Your employer also has to set out alternatives that could be accommodated or specify if there are no alternatives.

If employers refuse, then they must explain why. Employers can only refuse if they have reasonable business grounds, including where:

• the proposed flexible working arrangements would be too costly;
• there is no capacity to change other employees’ working arrangements to accommodate the proposed flexible working arrangements;
• it would be impractical to change other employees’ working arrangements or recruit new employees to accommodate the proposed flexible working arrangements;
• the proposed flexible working arrangements would be likely result in a significant loss of efficiency or productivity; and
• Tthe proposed flexible working arrangements would likely have a significant negative impact on customer service.

For example, it might be reasonable business grounds to reject a request by a barista or an overnight service station cashier to work from home one day a week. For a cafe or a service station this might have a significant negative impact on customer service. However, in other businesses or types of roles the employer might not have reasonable business grounds to reject the request.

Employers can also refuse a request if accepting it would breach your award or industrial agreement. If your award says you are entitled to at least 8 hours between shifts, for example, then your employer could reject a request for start and finish times across two days that breaches this.

If you have a dispute with your employer about flexible work arrangements, you can try and resolve it with your employer informally. If that fails, national system employees can lodge a dispute in the Fair Work Commission and state system employees can lodge a dispute in the Western Australian Industrial Relations Commission.

If you have a dispute with your employer about flexible work arrangements, you can try and resolve it with your employer informally. If that fails, national system employees can lodge a dispute in the Fair Work Commission and state system employees can lodge a dispute in the Western Australian Industrial Relations Commission.

This usually involves a conciliation first where the Commission mediates discussions between you and the employer to resolve the dispute. If this is unsuccessful, the Commission can arbitrate (decide) the dispute and make binding orders that you or your employer must comply with.

Employees generally have the right to make employment related inquiries or complaints. This means if your employer takes negative action against you for asking or complaining about something at work, then you may have a legal claim. Requesting flexible work arrangements from your employer or complaining about a flexible work arrangements dispute can fall within this.

For more information see our publication: “Q&A: Protected complaints and actions for WA workers”.

National system employees

If you have adverse action taken against you for a prohibited reason you may have a General Protections claim. Exercising a workplace right such as making an inquiry or complaint is one example of a prohibited reason. If your claim involves a dismissal, it must be lodged with the Fair Work Commission within 21 days of dismissal. For General Protections claims that don’t involve a dismissal the time limit is 6 years.

For more information see our publications: “Claim Guide – General protections (dismissal) for national system employees” and “Claim Guide – General protections (non-dismissal) for national system employees”.

For information about dismissal generally, including other alternative dismissal claims like unfair dismissal, please see our publication: “Q&A: Dismissal for WA employees”.

State system employees

If you have damaging action taken against you because you made an employment related inquiry or complaint, then you may have a protection of employee rights claim. This claim can be made to the Industrial Magistrates Court within 6 years of the dismissal or non-dismissal damaging action.

For more information see our publication: “Claim Guide: Protection of employee rights for state system employees”.

For information about dismissal generally, including other alternative dismissal claims like unfair dismissal, please see our publication: “Q&A: Dismissal for WA employees”.

• Q&A: Minimum Conditions for WA Employees
• Claim Guide: General protections (dismissal) for national system employees
• Claim Guide: General protections (non-dismissal) for national system employees
• Claim Guide: Protection of employee rights for state system employees

Circle Green Community Legal

WA employees can request free and confidential legal assistance with employment and workplace discrimination issues from Circle Green Community Legal.

• Complete an online request: org.au/get-help
• Telephone enquiries: 08 6148 3636 (Please note that we do not provide on demand legal advice)

For further information on our Workplace law services, please visit: circlegreen.org.au/workplace

Other organisations

Fair Work Ombudsman

• Web: https://www.fairwork.gov.au/

Wageline

• Web: dmirs.wa.gov.au/contactwageline

Fair Work Commission

• Web: https://www.fwc.gov.au/

Western Australian Industrial Relations Commission

• Web: https://www.wairc.wa.gov.au/