From 31 January 2025, employees in the WA state industrial relations system have a minimum entitlement to make a flexible working arrangement request that comes from the Minimum Conditions of Employment Act 1993.
A written request for a flexible working arrangement 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:
- the employee is pregnant;
- the employee is the parent of, or has responsibility for the care of, a child who is of school age or younger;
- the employee is a carer (as defined in the Carers Recognition Act 2004);
- the employee has a disability;
- the employee is 55 years of age or older;
- the employee is experiencing family and domestic violence;
- the employee provides care or support to a member of the employee’s family or household who requires care or support because the member is experiencing family and domestic violence.
A flexible working arrangement 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 a flexible work arrangement but it must be in writing and set out:
- what the flexible working arrangement the employee is seeking; and
- the reasons for seeking that arrangement; and
- which of the specific circumstances apply to the employee.
Employers, particularly in larger organisations, may have specific forms for employees to use.
Wageline's Employee request for a flexible working arrangement - template letter (PDF, 365.24 KB) can be used by state system employees as a guide as to how to make a written request to their employer.
An employer must give the employee a written response within 21 days which contains specific information and can only refuse a request in certain circumstances. The relevant sections below provide more information.
Requirements for employers to respond to an employee request
Show moreThe employer must give the employee a written response within 21 days.
There is no set form or format for an employer response to a flexible work arrangement request, but it must be in writing and the response must:
- state that the employer grants the request; or
- if, following discussions, the employer and employee agree to alternative changes to the employee’s working arrangements from those set out in the request – set out the agreed changes; or
- state that the employer refuses the request and:
- include details of the reasons for the refusal; and
- set out the employer’s particular business grounds for refusing the request and explain how those grounds apply to the request; and
- either set out any alternative changes in the employee’s working arrangements that the employer would be willing to make, or state that there are no such changes; and
- advise the employee of the flexible working arrangement dispute settlement process, including referral rights to the Western Australian Industrial Relations Commission.
Wageline's Employer response to a request for a flexible working arrangement - template letter (PDF, 350.62 KB) can be used by state system employers as a guide as to how to respond to a written request from an employee.
In what circumstances can an employer refuse a request?
Show moreAn employer may refuse a request only if:
- the employer has discussed the request with the employee and genuinely tried to reach an agreement about making changes to the employee’s working arrangements to accommodate the employee’s circumstances; and
- the employer and employee have not reached such an agreement; and
- the employer has considered the consequences of the refusal for the employee; and
- there are reasonable business grounds for refusing the request.
Reasonable business grounds for refusing a flexible working arrangement request include the following:
- the requested arrangement would be too costly for the employer;
- there is no capacity to change the working arrangements of other employees to accommodate the requested arrangement;
- it would be impracticable to change the working arrangements of other employees, or recruit new employees, to accommodate the requested arrangement;
- the requested arrangement would be likely to result in a significant loss to the employer’s efficiency or productivity;
- the requested arrangement would be likely to have a significant negative impact on customer service.
An employer may also refuse a request if agreeing would contravene an applicable industrial instrument. For example, where a WA award or industrial agreement sets a daily span of hours and provides for the payment of overtime or an allowance for the performance of work outside of those hours, an employer and employee cannot make a lawful agreement for the employee to start or finish work outside of the span of hours without payment for overtime or the allowance.
What if an employee and employer cannot agree?
Show moreIf an employer fails to respond to an employee’s request within 21 days, or an employer refuses an employee’s flexible working arrangement 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.
If:
- an employer failed to respond to an employee’s request within 21 days, or an employer has refused an employee’s request for a flexible working arrangement; and
- the employer and employee have made reasonable attempts to resolve the dispute at a workplace level,
the dispute can be referred by the employee, employer or an organisation to the Western Australian Industrial Relations Commission (WAIRC) for conciliation and arbitration. The WAIRC may make orders relating to flexible working arrangements in certain circumstances. This includes making an order requiring the employer to respond to a request or to grant a request, and declaring that the grounds on which an employer refused the request are or are not reasonable business grounds.
An employer must comply with any flexible working arrangement order made against them by the WAIRC and may be subject to civil penalties, be required to pay compensation to the employee and/or be required to comply with the flexible working arrangement order if the order is 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 flexible working arrangement requests. The IMC can impose civil penalties on an employer for a contravention of a minimum condition and make any other order it thinks appropriate for the purpose of preventing any further contravention of the minimum condition.
If an employee commences proceedings in the IMC regarding a flexible working arrangement request, the onus is on the employer to prove that their refusal of the employee’s request complied with the Minimum Conditions of Employment Act, including that the refusal was on reasonable business grounds.
Employees have a choice of referring a flexible working arrangement dispute to the WAIRC or making an application to the IMC but are prevented from doing both simultaneously.
