Requests for Flexible Working Arrangements
There has been a significant shift in traditional working patterns in Australian businesses over the last twenty years. Increasingly, many private sector businesses are offering flexible working arrangements (job-share, part-time arrangements, non-traditional hours, transition to retirement etc.) to reflect modern arrangements as well as being a method to attract and retain staff in an increasingly competitive job market.
Additionally, requests for flexible working arrangements by employees is part of the National Employment Standards (NES). The NES apply to all employees covered by the national workplace relations system, regardless of any award, agreement or contract provision. The NES includes a right for certain employees to request flexible working arrangements (such as seeking altered hours of work) from their employer. The basic principle is that an employer can only refuse such requests on what is called `reasonable business grounds’.
The eligibility criteria for which employees can make flexibility requests is quite broad. It includes requests for flexibility because they:
Are the parent, or have responsibility for the care, of a child who is of school age or younger;
Are a carer for another person (within the meaning of the Carer Recognition Act 2010);
Have a disability;
Are aged 55 years or older;
Are experiencing violence from a member of their family; or
Provide care or support to a member of the immediate family or household, who requires care or support because they are experiencing violence from their family.
If an employee is the parent of a child or has the responsibility for the care of a child and is returning to work after 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.
Importantly, the types of flexible arrangements employees can request is also quite broad. While by no means being an exhaustive list, the most common flexibility requests involve seeking:
Changes in hours of work (e.g. reduced hours, earlier or later finish times).
Changes in work patterns (e.g. job sharing, splitting of shifts).
Changes in work location (e.g. working from home, another work location).
Employees cannot request flexible arrangements unless they have completed at least 12 months of continuous service prior to making the request. Casual employees cannot make requests unless they have been employed on a regular and systematic basis for at least 12 months and there is a reasonable expectation of employment on a regular ongoing basis.
The legislation details a set procedure that must be followed when employees are seeking flexible arrangements.
The request must be in writing, setting out the details of the change sought and the reasons for the change.
The employer must provide a written response in reply within 21 days of receiving the request. The options open to the employer include:
a) Granting the request in full.
b) Partially granting the request.
c) Rejecting the request.
The response must include the reasons upon which the decision is made, particularly in relation to either option (b) or (c). It is clear that the legislature intends to facilitate such requests as far as practicable, and that moving forward, the reasons for requesting flexibility is likely to expand.
Some of the reasons that businesses may reject requests (either fully or partly) include:
The requested arrangements would be too costly;
There is no capacity to accommodate the requested arrangements;
It would be impractical to change the existing working arrangements (e.g. would require the recruitment of new staff);
The likelihood that the requested arrangements would result in significant loss of business efficiency or productivity for the business;
The likelihood that the requested arrangements would result in a significant impact on customer service.
For queries about requests for flexible arrangements, the NES or any other employment matters, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178 or via email to firstname.lastname@example.org
Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.