Flexible Work

Legislative context

There is a body of law relevant to all organisations that relate to flexible work, work and family practices and equal employment opportunity.

Victorian Equal Opportunity legislation and the Fair Work Act 2009 (Cth) National Employment Standards (NES) prohibit employers from unreasonably refusing to accommodate a request for flexible work arrangements.

Fair Work Act 2009 (Cth) National Employment Standards

A request for flexible workplace arrangements may be made in accordance with Section 65 of the Fair Work Act in the following circumstances, the employee:

• is the parent, or has responsibility for the care, of a child who is of school age or younger
• is a carer (within the meaning of the Carer Recognition Act 2010)
• has a disability
• is 55 or older
• is experiencing violence from a member of the employee's family
• provides 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. Please also refer to Family Violence Leave — Information for Employees.

A long-term casual employee who has a reasonable expectation of continuing employment on a regular and systematic basis may also make a request for flexible work under this provision.

Employees with continuous service of less than 12 months may apply for flexible work arrangements and these will be considered based on operational requirements.

The request should be responded to in writing no later than 21 days following the submission of the request.

The written response must state whether the request is approved or not approved. If a request is not approved, the response must include the grounds for that decision. A request may only be refused on reasonable business grounds.

Victorian Equal Opportunity legislation

Victorian Equal Opportunity legislation prohibits discrimination on the basis of a person's parental status or status as a carer in certain areas of public life, including employment and other employment-related areas. In these areas, discrimination is specifically prohibited against job applicants, employees and contract workers.

The legislation requires an employer, in relation to work arrangements, to not unreasonably refuse to accommodate the parental or carer responsibilities of a person offered employment, an employee or a contract worker. In determining whether a refusal to accommodate responsibilities is unreasonable, all relevant facts and circumstances must be considered. It will be discrimination for an employer or principal to contravene this requirement and a person affected will be able to make a complaint about the contravention to the Victorian Equal Opportunity and Human Rights Commission.

Working parents and carers should not be discriminated against for trying to balance their work and family responsibilities. Employers are obliged to seriously consider how they may be able to accommodate their employee’s family responsibilities in order to allow them to participate as much as possible in the workforce. Employers should not refuse to accommodate family responsibilities unless it is unreasonable in all the circumstances, taking into account the circumstances of the case and the needs of the workplace.