Published September 2023
Thinking about asking your boss for some changes to your employment conditions? Know your rights!
We are frequently contacted by ASU members who could benefit from a variation to their employment conditions because of their personal circumstances. Sometimes our members are unaware that they have a workplace right to request variations to their conditions. Other times, our members are aware of their rights, but they are worried about pushback from their boss if they ask for accommodations.
For this reason, it’s important to understand where your rights come from, how to exercise them, and what your protections are from negative repercussions.
Flexible working arrangements requests
Under the Fair Work Act 2009 (Cth)(‘FWA’), all national system employees[1], including regular and systematic casuals, who have worked for at least 12 months are able to request flexible working arrangements if one of the following circumstances apply (please note that your enterprise agreement may include more circumstances):
- The employee is pregnant;
- The employee is a parent or carer for a child who is of school-age or younger;
- The employee is a carer (within the meaning of the Carer Recognition Act 2010);
- The employee has a disability;
- The employee is 55 or older;
- The employee is experiencing family and domestic violence; and/or
- The employee provides care or support to a member of their immediate family or a member of their household who requires care or support due to family and domestic violence.
If one or more of these circumstances exist for you, you are entitled to request ‘flexibility’ to your working arrangements from your employer. Flexibility could include things like a total or partial exemption from your employer’s general policy of returning to work, changes to shift times or more breaks at work.
Any requests for flexible working arrangements must be made in writing to your employer, and must set out the changes sought and the reasons for the change. We have developed a template flexible work request to assist our members in making this request.
Your employer will then have 21 days to respond to the request in writing, and they can only refuse the request on reasonable business grounds and after genuine consultation with you. The Fair Work Commission has the power to resolve disputes relating to requests for flexible working arrangements, so your employer cannot simply refuse the request without a genuine reason.
People who have disabilities, parents or carers
[1] A national system employee includes all employees in Victoria except law enforcement officers or an executive in the public sector.
Irrespective of your length of service, if you are a parent or carer, or you have a disability in Victoria, you have additional rights to flexibility and accommodations in the workplace under the Equal Opportunity Act 2010 (Vic)(‘EOA’).
For example, in Victoria, if you have a disability, your employer is obliged to make reasonable adjustments to accommodate you to perform the genuine and reasonable requirements of your employment.
‘Disability’ is broadly defined under the EOA. It includes the total or partial loss of a bodily function or a part of the body, a disease, mental or psychological diseases or disorders or a malformation. A disability can be temporary or permanent.
‘Reasonable adjustments’ could include granting a total or partial exemption from a workplace policy requiring you to work from the office, but it could also include a range of upgrades in the workplace. For example, improved office chairs, standing desks or better lighting. It could also include an arrangement where you take more breaks at work, or allowing you to attend rehab or therapy during work hours. Whether or not an adjustment that is requested is ‘reasonable’ depends, among other things, on the nature of the adjustment requested, the costs associated with the adjustment, and the size and nature of your employer’s business.
Similarly, in relation to work arrangements, employers must not unreasonably refuse to accommodate the responsibilities you might have as a parent or carer. Common adjustments might be needing to drop off or pick up your kids from school, taking your kids to medical appointments or changing standard shift times.
If you are a parent or carer, or you have a disability, you should ask yourself: are there work arrangements or changes to the workplace that my employer might be able to make in order to make my life easier? If so, you should ask for it!
Protections from negative repercussions
Under the FWA, your employer cannot take ‘adverse action’ against you because you have exercised a ‘workplace right’.
‘Adverse action’ is a broad concept, ranging from dismissal, getting less hours, being targeted for increased KPIs or simply facing differential treatment from your colleagues that creates a detriment.
If you are eligible for making a request for flexible working arrangements and you satisfy the formal requirements (which you will have done if you follow our template!), then you will have exercised a ‘workplace right’. Similarly, you are exercising a ‘workplace right’ if you make an inquiry in relation to a reasonable adjustment under the EOA.
If your employer takes adverse action against you for exercising a workplace right, this could constitute a contravention of the general protections provisions of the FWA. Depending on the details, it might also constitute discrimination.
Note: Regarding discrimination, under the EOA you have 12 months from the date of the discriminatory conduct taking place to make a claim in VCAT. Under the federal anti-discrimination legislation, you have 24 months from the date of the discriminatory conduct to make a claim in the Australian Human Rights Commission. Regarding general protections claims, if you are dismissed for exercising a workplace right, you have 21 days from the date of the termination taking effect to make a general protections dispute (involving termination) application in the Fair Work Commission. If the adverse action is not involving termination, you have 6 years from the date of the adverse action to make a general protections dispute (not involving termination) in the Federal Court of Australia or Federal Circuit and Family Court of Australia. Please contact the ASU immediately if this occurs.
Take the next steps!
Some workers don’t think about asking their employer for things they need like a temporary change to their roster, or extra days working from home, because they expect to have their requests ignored or to face hostility from management. This shouldn’t happen, and if it does, know your rights and contact us for support.
Remember – you are the union. If you would like us to develop a resource or address a particular question about your workplace, send us an email at info@asupsvic.org.au or call our office on 03 9342 3300.
For support at work, join the Australian Services Union at: https://asujoin.asn.au/
Download your flexible working arrangement request template here
[1] A national system employee includes all employees in Victoria except law enforcement officers or an executive in the public sector.
