Snapshots

The right to flexible working arrangements (state system employees)

A flexible working arrangement (FWA) request may include, but is not limited to, changes to the employee’s:

• hours of work, including working on fewer days or for fewer hours, or both; and/or
• pattern of work, including working on different days or at different times, or both; and/or
• location of work.

There is no set form or format for a written request for an FWA, but it must be in writing and set out:

• what flexible working arrangement the employee is seeking;
• the reasons for seeking that arrangement; and
• which of the specific circumstances apply to the employee.

A written request for an FWA can be made by an employee with at least 12 months’ continuous service immediately before making the request. This includes a casual employee where they have been employed on a regular and systematic basis for at least 12 months, and there is a reasonable expectation that this will continue.

A request for a change in working arrangements can only be made because of, and in relation to, specific circumstances, and the circumstances must exist at the time the request is made.

The specific circumstances are when the employee:

• is pregnant;
• is the parent of, or has responsibility for the care of, a child who is of school age or younger;
• is a carer (as defined in the Carers Recognition Act 2004);
• has a disability;
• is 55 years of age or older;
• is experiencing family and domestic violence; or
• provides care or support to a member of the employee’s family or household who requires care or support.

If an employer fails to respond to an employee’s request within 21 days, or an employer refuses an employee’s FWA request, the employer and employee must make reasonable attempts to resolve the dispute by discussions at the workplace level.

The employer and employee may authorise another person or organisation (such as a union or employer organisation) to support or represent them in these discussions.

The dispute can be referred by the employee, employer or the AMA (WA) to the Western Australian Industrial Relations Commission (WAIRC) for conciliation and arbitration.

The WAIRC may make orders relating to FWA in certain circumstances. This includes making an order requiring the employer to respond to a request or to grant a request, and declaring the grounds on which an employer refused the request, whether it is or isn’t reasonable.

An employer must comply with any FWA order made against them by the WAIRC and may be subject to civil penalties, required to pay compensation to the employee, and/or required to comply with the FWA order if the order was contravened. Alternatively, an employee could make an application to the Industrial Magistrates Court (IMC) claiming a contravention of the minimum condition of employment relating to FWA requests.