Employment Law – Flexible Working Arrangements – Information for Employers and Employees

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More and more employees need to adapt their work schedule to their way of life. This is especially relevant for working parents, working carers and mature age employees. The National Employment Standards (NES) gives employees the right to apply for flexible working arrangements.

Section 65 of the Fair Work Act 2009 (FW Act) provides that an employee may request flexible working arrangements in particular circumstances. The circumstances are:

The employee is a parent or has responsibility for the care of a child of school age or younger (including an employee returning from parental leave);

  • The employee is a carer within the definition of the Carer Recognition Act 2010;
  • The employee has a disability;
  • The employee is 55 or older;
  • The employee is experiencing violence from a member of the employee’s family; or
  • The employee provides care or support to a member of the employee’s immediate family or his/her household who requires care or support because they are experiencing family violence.

The requests can be made by way of seeking:

  • Changes in hours of work;
  • Changes in patterns of work; and
  • Changes in location of work.

However, for an employee to request flexible working arrangements, the employee must have completed at least 12 months continuous service with the employer immediately before making the request.  If the employee is a casual employee, the employee cannot make a request unless they are a long term casual employee (which means at least be employed for 12 months) with the employer immediately before making the request and the employee has reasonable expectation of continuing employment by the employer on a regular and systematic basis.

What is the process for requesting flexible working arrangements?

Employees who wish to make a request must do so in writing, and must set out the details of the changes sought along with the reasons for the requested change (s65(3) FW Act).

  1. Once an employer receives such a request, they have 21 days in which to provide a written response to the employee.  The employer’s response must state whether or not the request will be granted or refused (s65(4) FW Act);
  2. Employers may only refuse a request on reasonable business grounds (s65(5) FW Act); and
  3. If a request is refused, the written response provided to the employee must include details of the reasons for the refusal (s65(6) FW Act).

What is a ‘reasonable business ground’ for refusal?

Section 5A of the Fair Work Amendment Act 2013 provides a definition of “reasonable business ground” and they include:

  • That the new working arrangements would be too costly for the employer;
  • That there is no capacity to change working arrangements of other staff to accommodate the request;
  • That it would be impractical to change the working arrangements of other employees or recruit a replacement employee to accommodate the employee’s request;
  • That the new arrangements would be likely to result in a significant loss or productivity or efficiency;
  • That the new arrangements would be likely to have a significant negative impact on customer service.

The provision for flexible working arrangements is a minimum requirement.  However, in practicality it would seem that this provision is of minimal assistance to employees.

Whilst the FW Act confers this right to make a request for flexible working arrangements, and requires the employer to give written reasons for rejecting the request, the FW Act does not provide a direct enforcement mechanism for the employee’s right.  Section 44 of the FW Act specifies that unlike the majority of the NES, there is no civil penalty action under the FW Act available against an employer who has contravened (or has allegedly contravened) a refusal of a request on reasonable grounds.  This means that an employee will not be able to challenge their employer’s refusal of their request for flexible working arrangements made pursuant to the provisions of the NES, or to investigate a refusal allegedly made on the basis of “reasonable business grounds” under the NES.  Thus the NES provisions may be of limited or little practical utility to most employees.

However, if an employee is subject to an Enterprise Agreement and that Enterprise Agreement includes a provision relating to requests for flexible working arrangements that is the same or substantially similar (and has the same effect as the NES); the Fair Work Commission can deal with disputes regarding “reasonable business ground”, and thus a contravention would subject the employer to the normal enforcement mechanisms under the FW Act (s186(6)).

If an employee considers that the refusal to allow for flexible working arrangements is based on prejudices related to discrimination, sex, disability or race, the FW Act 2009 allows the employee to seek remedies that may be available to them under relevant legislation if the employee considers that their employer has discriminated against them in connection with such a request.

Considering Flexible Working Arrangements? Know your rights. Contact us

Specific legal advice should be taken to consider whether your employment situation is an exception, or falls within the general rule. Our Brisbane Employment Lawyers can assist you with this.

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This article was written by Heilala Tabete.