With the commencement of the National Employment Standards (NES) on 1 January 2010 it is critical that employers understand their obligations when it comes to employee requests for flexible working arrangements.
The new provisions not only create a legal right for employees to request flexible working arrangements, but potentially increase the risk of carer related discrimination claims where flexible working arrangement requests are refused by employers without proper consideration.
This bulletin provides employers with practical steps to respond to employee requests for flexible working arrangements.
Flexible working arrangements
An employee has a right to request flexible working arrangements where the employee:
- has completed 12 months continuous service or
- if the employee is a casual, the employee is a long term casual with a reasonable expectation of continuing employment on a regular and systematic basis and
- the employee is either a parent of or has the responsibility for the care of a child under school age or a child with a disability (under 18 years of age).
Making the request
The NES sets out a clear procedure for the making of the request by the employee.
Employees must make the request in writing and set out details of the change sought and the reasons for the change.
‘Flexible working arrangements’ are not defined by the NES and consequently there is no limit or restriction on the type of flexible arrangements that might be agreed upon by an employer and employee. Examples of flexible working arrangements include:
- changes in hours of work such as part-time work
- changes in patterns of work such as changes to start or finish times
- a change in location of work such as working from home.
The employer must respond to the request
The employer must give the employee a written response to the request within 21 days, stating whether the request has been granted or refused.
Refusing the request
A request for flexible working arrangements can only be refused on reasonable business grounds.
Reasonable business grounds are not exhaustively defined by the NES, however, reasonable business grounds include:
- the impact on the business of accommodating the employee’s request including financial cost, efficiency, productivity and customer service
- the employer’s ability to organise work arrangements, and
- the employer’s ability to recruit a replacement employee or the practicality of the arrangements that may need to be put in place to accommodate the employee's request.
If the request is refused the written response to the employee must include details of the reasons for the refusal.
Implications for employers
The new flexible working arrangements create legal risks for employers.
Employers must ensure that they have appropriate procedures in place to comply with the NES requirements.
It is also likely that the new right to request flexible working arrangement will increase employee awareness of anti-discrimination laws relating to carers obligations and flexible working arrangements.
Employers should also be mindful of the new general protection provisions of the Fair Work Act which could result in claims of adverse action and discrimination during employment as well as resulting in termination of employment.
What should employers do?
- Put appropriate procedures in place to deal with requests for flexible working arrangements that comply with the NES
- Provide refresher training to supervisors and managers about their obligations when dealing with requests for flexible working arrangements
- Give proper consideration to requests made by employees for part time work or changes to their normal working arrangements because of their responsibilities as carers.