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Insights

Changing Flexible Working Laws

By

Greg Arnold

From 2 June 2023, employers must meet new obligations before making their final decision, which includes considering every avenue possible to adopt flexible working conditions to suit the employee making the request and their circumstances.

A Victorian paramedic requested a flexible working arrangement with her employer, Ambulance Victoria, to which the request was rejected. It was later found by the Fair Work Commission (FWC) that Ambulance Victoria lacked reasonable business grounds. 


The request involved the paramedic seeking to alter her night shift times so that she was available to look after her children while her husband was at work. The times varied slightly; she requested to start her night shift at 9pm instead of 6pm, and finish her shift at 6am instead of 8am. 


The paramedic was informed by a senior manager that the shifts did not exist and Ambulance Victoria was not in a position to alter any shift times.  This led Commissioner Leigh Johns to ask the question of “why not?”.  Ambulance Victoria stated to the FWC they wouldn’t completely rule out flexibility in the workplace and that they had offered the paramedic an alternative but it was noted that Ambulance Victoria did not hold any meetings with the paramedic to explain this and why the request was rejected.  It simply said no. 


Flexible working request changes from 6 June 2023


Under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, all employers will have to meet new obligations before making their final decision, which includes considering every avenue possible to adopt flexible working conditions to suit the employee making the request and their circumstances. 


The new laws around workplace flexibility means that an employer is required to sit down and talk to their employee about the request and the employer will need to show they have exercised all considerations and if applicable, tried to make alternative arrangements for the employee for flexible working arrangements to be integrated into the workplace. 


An employer’s response cannot be verbal; it must be in writing and if denied, a full explanation must be given to the employee.  In the above case study, Ambulance Victoria did not do this but as of 6 June 2023, they will be required to comply with legislation.  New requirements to come into effect also include that an employer must detail if they have attempted to find another solution to suit the employee’s circumstances.  Most importantly, an employer must inform the employee they have the option of disputing the decision with the FWC. 


It was stated Ambulance Victoria was correct to be concerned about ensuring there are always two paramedics on shift each time but it was found by Commissioner Johns that the paramedic’s flexible request could be seen as advantageous as she could be allocated as a flexible spare and sent to other branches to cover absent employees.  It would also be viewed as actually helping the community to fill in the gaps.  This is a clear example that the onus is on the employer to find other ways to adopt flexibility in the workplace if it can’t accommodate the specific requests of the employee.  Both parties will be required to discuss and agree on the changes being put forward, and this must be put in writing within 21 days of the request.   


Disclaimer: This article provides a summary only of the subject matter without the assumption of a duty of care by Effective Workplace Solutions. No person should rely on the contents as a substitute for legal of other professional advice. 

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