Requests for flexible working arrangements form part of the National Employment Standards (NES) which apply to all employees covered by the national workplace relations system, irrespective of any award, agreement or contract. State and Federal discrimination legislation can also provide certain employees with the right to request flexible working arrangements.
The NES provides a right for certain employees to request flexible working arrangements from their employer, which can only be refused on the basis of ‘reasonable business grounds’.
What are your legal obligations?
Permanent employees with at least 12 months service, or casual employees who have both regular and systematic hours for the last 12 months and an expectation of continuing employment are entitled to request flexible working arrangements if they:
- Are a parent or carer of a child who is under school age;
- Have a disability;
- Are over 55 years of age;
- Are experiencing family or domestic violence; or
- Provide care to a family member experiencing domestic violence.
An employee who has responsibility for the care of a child and is returning to work after taking a period of parental or adoption leave, the employee may request to return to work on a part-time basis to help them care for the child.
Examples of flexible working arrangements which may be requested may include changes to:
- Hours of work;
- Patterns of work; and
- Locations of work.
Responding to requests for flexible working arrangements
A request for flexible working arrangements must be made by an employee in writing. Upon receiving such a request, an employer should consider the employee’s request and document the reasons for either accepting or refusing the request. Care needs to be taken not to discriminate or take any adverse action against an employee when considering their request for flexible working arrangements.
An employer is required to respond to such requests in writing within 21 days. Such a request can only be refused on reasonable business grounds.
Reasonable business grounds can include:
- The working arrangements requested by the employee being too costly for the employer to implement,
- Having no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested,
- It being too impractical to change the working arrangements of other employees, or to recruit new employees so as to accommodate the new working arrangements requested by the employee
- The new working arrangements requested by the employee being likely to result in significant loss of efficiency or productivity
- Where the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.
Where a request for flexible working arrangements is made but cannot be accommodated in full, an employer can liaise directly with the employee to try reach an agreement that will balance the needs of both parties.
If the request for flexible work arrangements is refused, the employer must also include reasons for the refusal in their response.
While there is no requirement for an employer to agree to a request for flexible working arrangements, the Fair Work Commission is empowered to deal with disputes about whether an employer had reasonable business grounds for refusing a request. An employee may also have remedies under relevant discrimination legislation if an employee considers they have been discriminated against by the employer’s handling or refusal of their request.
HR Advice Online can assist you in developing appropriate flexible work arrangement policies and templates that will reflect your business needs.
Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors such as government legislation changes, may not be up-to-date at the time of reading. It is not legal advice and should not be treated as such.