Skip to main content

Responding to a flexible working arrangement dispute application 

Flexible working arrangement requests occur when an employee makes a request to change working arrangements. These changes may be to the:

  • hours of work (for example, changes to start and finish times)
  • pattern of working (for example, split shifts or job sharing)
  • work location (for example, working from home).

 

The request must:

  • be in writing
  • set out the change being asked for
  • explain the reasons for the requested change

 

Employers need to respond to a request:

  • in writing
  • within 21 days
  • by answering whether the request has been granted or refused, and providing reasons for any refusal
  • by providing information on any other changes the employer is willing to make or stating that there aren't any changes to be made

 

A flexible working arrangement request may be refused on reasonable business grounds such as: 

  • the requested arrangements are too costly

  • likely to result in a significant loss of efficiency or productivity

  • likely to have a significant negative impact on customer service

  • impracticable to accommodate because of other employees’ working arrangements. 

 

If the employer refuses the request, the employee and the employer must make reasonable attempts to resolve the dispute.

 

The dispute can be referred to the Commission if:

  • the employer failed to respond to the request within 21 days or refused the request
  • the employee and employer have made reasonable attempts to resolve the dispute

Critical information

  • You can submit your response by submitting a Form 4 - Response (General).
  • Failing to submit a response will not prevent the Commission from enquiring into and dealing with the application, but it might prevent the Commission from taking your viewpoint into account when it does.
  • Even if you choose not to be involved, a decision might be made against you.
  • Information on representation can be found here.

Please refer to the Commission's Fact Sheets for further guidance on proceedings at the Commission.

 

 

Helpful quicklinks

Fact sheets

Applications and forms

Coverage and jurisdiction

Step-by-step guidance on the flexible working arrangement dispute process

Lodging a response

You can submit your response by lodging a Form 4 - Response (General) in the Registry of the Commission in person, by online lodgement, by email or by post within 21 days of service of the application.

Filing a response gives you an opportunity to provide your reasons for opposing the application. For instance, if you believe that the application does not fall within the Commission's jurisdiction, you may contest the application on jurisdictional grounds.

You are not required to have a representative and can represent yourself. For information on representation and representing yourself, please click here.

What happens next?

  • After you have filed your response, the Commission’s Registry will provide a copy to the applicant and a copy to you for your records.
  • The matter will be allocated to a Commissioner, you will be contacted by the Commission and the matter will be listed for a conciliation conference.

 

 

What is a conciliation conference?

In the context of the Commission, a conciliation conference is a conference conducted by a Commissioner who can help the parties to resolve their employment dispute. The purpose of the conciliation is to explore whether an agreement can be reached between the parties, not to decide who is right or wrong.

Conciliation conferences are private and are conducted on a 'without prejudice' basis. This means that what is discussed at a conciliation conference cannot be used against one of the parties if the matter goes to hearing. This allows the parties to explore possible settlement options without fear of the other side using any offers or concessions made at the conference as an admission to various aspects of a claim. The conference is not recorded, and no transcript is produced. Any visual or audio recording is strictly prohibited. An agreement may be reached during or after the conference, the parties have control over the outcome before the matter reaches the hearing stage. In contrast, if the matter goes to hearing, the Commission will decide the outcome of the matter.

For more information please read the Commission’s conciliation conference fact sheet by clicking here.

For more information please see the Commission’s conciliation conference video by clicking here.

Possible outcomes of conciliation

  • An agreement may be reached during or after the conference.
  • If an agreement is not reached, the Commission may hold further conferences depending on the circumstances, or list the matter for hearing.

What is a hearing?

A hearing is where the Commission receives arguments and evidence from both parties and makes a binding decision on a matter. It usually takes place in a room that is similar to a court room. There are two types of hearings: interlocutory or preliminary hearings and substantive hearings.

 

Interlocutory or preliminary hearings

There may be issues that have to be determined by the Commission before the merits or substance of an application can be dealt with. These preliminary (or interlocutory) matters may relate to an issue with the employee’s claim that needs to be resolved before the rest of the matter can proceed, such as an application for discovery of documents.

Some examples of preliminary issues include:

  • whether the Commission has jurisdiction to deal with the application;
  • whether the employee is under the salary cap; or
  • whether the Commission can accept an application that was made out of time.

There may be one or more interlocutory hearings before the substantive hearing to deal with preliminary or procedural issues.

A Directions hearing is similar to a preliminary hearing. It is where the Commission will set out how the matter will progress. This can include setting out a timeline for when things ought to occur such as discovery, or when things are to be filed with the Commission, such as outlines of submissions or witness statements.

Substantive hearing

A substantive hearing is where the Commission hears and determines the substance or merits of the employment or industrial issues in dispute.

 

For more information please read the Commission’s hearing fact sheet by clicking here.

For information on evidence, please read the Commission’s evidence fact sheet by clicking here.

For information on representation and representing yourself, please read the Commission’s representation fact sheet by clicking here.

Possible outcomes of a hearing

The Commissioner who hears the evidence and arguments might make a decision about the claim:

  • at the hearing, after all evidence and arguments are presented; or
  • after the hearing, by “reserving” the decision.

If the Commissioner “reserves” the decision, this means the Commissioner needs time to review everything that has been presented and consider the issues before making any orders or giving a decision.   

 

If your claim is unsuccessful, the Commission will usually dismiss the claim. 

If your claim is successful, the Commission may:

  • order the employer to respond to the request in writing or provide more detailed reasons for their response

  • order the employer to grant the flexible working arrangement request

  • order the employer to make a specific change in the employee’s working arrangements

  • make a declaration about the request (that the employer refused the request or that the grounds on which the employer refused the request are, or are not, reasonable business grounds). 

The Commission’s orders are binding and enforceable. If anyone does not comply with the Commission’s orders, an enforcement application can be made to the Industrial Magistrates Court. That Court can make orders for penalties.