Employ­ers should be aware that employ­ees have the right to request a change in work­ing arrange­ments to assist the employ­ee in car­ing for a child. Such a request is often made while an employ­ee is on parental leave and is often a request to return to work in a part time capac­i­ty. The employ­er may refuse such a request on rea­son­able busi­ness grounds.

The right to request” (as it is called) is enshrined in the Nation­al Employ­ment Stan­dards con­tained in the new Fair Work Act. It is avail­able to employ­ees who are par­ents and who have been employed for over 12 months. It may be made in respect of a child:

  • under school age; or
  • who is under 18 and has a disability.

The request must be in writ­ing and must set out the details for the change sought and the rea­sons for the change.

Long term casu­als also have the right to request such arrangements.

What the employ­er must do if it receives a request

With­in 21 days the employ­er must give the employ­ee a writ­ten response to the request stat­ing whether the employ­ee grants or refus­es the request.

If the employ­er decides to refuse the request, the writ­ten response must include details of the rea­sons for the refusal.

Employ­ers should con­sid­er requests on a case by case basis. Fun­da­men­tal to the Employer’s con­sid­er­a­tion will be what exact­ly the leg­is­la­tion means by a change in work­ing arrange­ments” and also what jus­ti­fies a refusal on rea­son­able busi­ness grounds”.

What is meant by a change in work­ing arrangements”?

The explana­to­ry mem­o­ran­dum to the Fair Work Act states that exam­ples of changes in work­ing arrange­ments include changes in hours of work, changes in pat­terns of work and changes in loca­tion of work.

Accord­ing­ly there is an argu­ment that a change in work­ing arrange­ments does not extend to the employ­ee chang­ing from a full time posi­tion to a part time position.

What is meant by rea­son­able busi­ness grounds”?

The explana­to­ry mem­o­ran­dum to the Fair Work Act states that the rea­son­able­ness of the grounds is a mat­ter to be assessed in the cir­cum­stances that apply at the time the request is made. Rea­sons for refusal may include:

  • The effect on the work­place and the employer’s business 
  • The inabil­i­ty to organ­ise work among exist­ing staff
  • The inabil­i­ty to recruit a replace­ment employee
Escape clause for employers

The Fair Work Act states that no order can be made under the Fair Work Act against the Employ­er sim­ply for refus­ing the request on rea­son­able busi­ness grounds.

How­ev­er, the employ­er still needs to have com­plied with its oblig­a­tions to respond to the request with­in 21 days and if the request is refused, to give rea­sons for the refusal.

Dis­crim­i­na­tion law also needs to be considered

Despite the above escape claus­es, the law does not sim­ply allow a carte blanche for Employ­ers to refuse a requests on rea­son­able busi­ness grounds.

A female employ­ee whose request has been refused may seek orders under the Sex Dis­crim­i­na­tion Act.

In a series of Fed­er­al Court cas­es, women who have encoun­tered dif­fi­cul­ties when seek­ing part time employ­ment after return­ing to work from mater­ni­ty leave have suc­cess­ful­ly argued that refusal to allow part time work has the effect of dis­ad­van­tag­ing women.

Accord­ing­ly, where a request is to be refused on rea­son­able busi­ness grounds, employ­ers should seek legal advice as to whether dis­crim­i­na­tion law will apply in the spe­cif­ic circumstances.

For fur­ther infor­ma­tion please contact:

If you would like to repub­lish this arti­cle, it is gen­er­al­ly approved, but pri­or to doing so please con­tact the Mar­ket­ing team at marketing@​swaab.​com.​au. This arti­cle is not legal advice and the views and com­ments are of a gen­er­al nature only. This arti­cle is not to be relied upon in sub­sti­tu­tion for detailed legal advice.

Publications

Res­i­den­tial Ten­an­cies Act 2010 (NSW) reforms and oblig­a­tions of land­lords — effec­tive from 19 May 2025

Intro­duc­tionThe Res­i­den­tial Ten­an­cies Act 2010 (NSW) (the Act) and the Res­i­den­tial Ten­an­cies Reg­u­la­tion 2019 (NSW) (the Reg­u­la­tions) have under­gone some sig­nif­i­cant…

Fail­ing to Reg­is­ter a PPSR Secu­ri­ty Inter­est on Time – Legal Risks and Options

Intro­duc­tionTime­ly reg­is­tra­tion of secu­ri­ty inter­ests under the Per­son­al Prop­er­ty Secu­ri­ties Act 2009 (Cth) (PPSA) is essen­tial for secured cred­i­tors to…

Con­struc­tion con­tracts are more than just a doc­u­ment — remove con­trac­tu­al claus­es at your peril

Your con­struc­tion con­tract will map out the path­way to your build­ing project com­plet­ing on time and with­in bud­get and detail­ing…

In the News

Press Release | New Part­ner Appoint­ment — Mark Glynn

With over two decades in the indus­try, Mark is a recog­nised front-end con­struc­tion lawyer spe­cial­ist with­in the build­ing and con­struc­tion indus­try. Mark…

Press Release | New Asso­ciate Appoint­ment — Hugo Mahony

“As we con­tin­ue to expand in line with our strate­gic vision, Hugo’s deep knowl­edge and expe­ri­ence in Com­mer­cial, Cor­po­rate, IP…

Michael Byrnes is quot­ed in the arti­cle, Police and Safe­Work are inves­ti­gat­ing MAFS, but the show keeps win­ning the rat­ings race”, pub­lished on ABC News on 6 April 2025

Michael Byrnes is quot­ed in the arti­cle, ​“Police and Safe­Work are inves­ti­gat­ing MAFS, but the show keeps win­ning the rat­ings…

Sign up for our Newsletter

*Mandatory information