FAIR WORK ACT 2009 - SECT 65A Responding to requests for flexible working arrangements

FAIR WORK ACT 2009 - SECT 65A

Responding to the request

  (1)   If, under subsection   65(1), an employee requests an employer for a change in working arrangements relating to circumstances that apply to the employee, the employer must give the employee a written response to the request within 21 days.

  (2)   The response must:

  (a)   state that the employer grants the request; or

  (b)   if, following discussion between the employer and the employee, the employer and the employee agree to a change to the employee's working arrangements that differs from that set out in the request--set out the agreed change; or

  (c)   subject to subsection   (3)--state that the employer refuses the request and include the matters required by subsection   (6).

  (3)   The employer may refuse the request only if:

  (a)   the employer has:

  (i)   discussed the request with the employee; and

  (ii)   genuinely tried to reach an agreement with the employee about making changes to the employee's working arrangements to accommodate the circumstances mentioned in subsection   (1); and

  (b)   the employer and the employee have not reached such an agreement; and

  (c)   the employer has had regard to the consequences of the refusal for the employee; and

  (d)   the refusal is on reasonable business grounds.

Note:   An employer's grounds for refusing a request may be taken to be reasonable business grounds, or not to be reasonable business grounds, in certain circumstances: see subsection   65C(5).

  (4)   To avoid doubt, subparagraph   (3)(a)(ii) does not require the employer to agree to a change to the employee's working arrangements if the employer would have reasonable business grounds for refusing a request for the change.

Reasonable business grounds for refusing requests

  (5)   Without limiting what are reasonable business grounds for the purposes of paragraph   (3)(d) and subsection   (4), reasonable business grounds for refusing a request include the following:

  (a)   that the new working arrangements requested would be too costly for the employer;

  (b)   that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested;

  (c)   that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested;

  (d)   that the new working arrangements requested would be likely to result in a significant loss in efficiency or productivity;

  (e)   that the new working arrangements requested would be likely to have a significant negative impact on customer service.

Note:   The specific circumstances of the employer, including the nature and size of the enterprise carried on by the employer, are relevant to whether the employer has reasonable business grounds for refusing a request for the purposes of paragraph   (3)(d) and subsection   (4). For example, if the employer has only a small number of employees, there may be no capacity to change the working arrangements of other employees to accommodate the request (see paragraph   (5)(b)).

Employer must explain grounds for refusal

  (6)   If the employer refuses the request, the written response under subsection   (1) must:

  (a)   include details of the reasons for the refusal; and

  (b)   without limiting paragraph   (a) of this subsection:

  (i)   set out the employer's particular business grounds for refusing the request; and

  (ii)   explain how those grounds apply to the request; and

  (c)   either:

  (i)   set out the changes (other than the requested change) in the employee's working arrangements that would accommodate, to any extent, the circumstances mentioned in subsection   (1) and that the employer would be willing to make; or

  (ii)   state that there are no such changes; and

  (d)   set out the effect of sections   65B and 65C.

Genuinely trying to reach an agreement

  (7)   This section does not affect, and is not affected by, the meaning of the expression "genuinely trying to reach an agreement", or any variant of the expression, as used elsewhere in this Act.