On 1 January 2010 employees of many national system employers will have a right to request flexible work arrangements. This is a new right which did not previously exist under the predecessor to the Fair Work Act 2009. Compliance with the right to request scheme will not have a phasing-in period and employers will be expected to fully comply from the start date.

While the right to request scheme does not impose a mandatory obligation on an employer to provide flexible work arrangements, it does in essence impose a duty to consider such requests when they arise. Therefore, an employer cannot decide to not consider a request at all, or reject a request, without having applied some analysis to it to determine whether the arrangements can be in fact accommodated so that they reasonably suit the needs of the employee and the business needs of the employer.

In this sense, to some degree, the right to request scheme addresses some of the deficiencies that have existed to date when anti-discrimination laws have been used to ventilate issues about workplace flexibility. Many of the anti-discrimination cases to date have focused narrowly on the return-to-work from maternity leave scenario and from that the accommodation of alternative work arrangements. However, the NES right to request entitlement concerns itself more broadly with what an employer is required to do to facilitate an employee request for workplace flexibility at different stages of the employment.

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