Under the National Employment Standards (NES), an employee who is a parent or is responsible for the care of a child under school age or a disabled child under 18 years of age may request their employer to change the working arrangements to assist the employee in caring for the child.

Before a request can be made, the following conditions must have been met: 

• a permanent employee must have completed at least 12 months of continuous service; or
• a casual employee is a long-term casual employee and has a reasonable expectation of continuing employment on a regular and systematic basis.

A request for flexible working arrangements must be in writing that sets out the details and the reasons for making the request.  The employer must respond to the request in writing within 21 days.  The request may only be refused on ‘reasonable business grounds’.

‘Reasonable business grounds’ may include the following: 

• the effect granting the request would have on the workplace and the business, including the financial impact, impact on customer service, efficiency and productivity;
• the employer being unable to organise the work among existing staff; and
• the employer being unable to recruit a replacement for the employee or otherwise put arrangements in place to accommodate the request for flexible working arrangements.

If an employer refuses to provide flexible working arrangements, it cannot be appealed and dealt with by Fair Work Australia or any other person, unless the employee is covered by an enterprise agreement which provides for dispute resolution in relation to requests for flexible working arrangements.

However, an unreasonable refusal by an employer to provide flexible working arrangements may be considered to be workplace discrimination.