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.
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.
The right to request is a minimum entitlement. It forms a part of the package of minimum safety net entitlements found in the National Employment Standards (the NES). The whole of the NES commences on 1 January 2010.
The right to request entitles an eligible employee to request a change in their working arrangements to "assist the employee to care for [a] child". The term "working arrangements" is not defined but it envisages capturing things like hours of work, patterns of work and location of work.
An eligible employee is a parent or a person who has responsibility for the care of a child who is under school age or is under 18 and has a disability. However, a casual employee, unless a "long term casual" with a reasonable expectation of continuing employment by the employer on a regular and systematic basis, is not eligible under the right to request scheme.
A qualifying period applies before an eligible employee has a right to request. An employee must have completed at least 12 months continuous service before making a request.
A right to request must be in writing and set out the details of the change sought and the reasons for the change. An employer must give the employee a written response to a right to request within 21 days.
An employer's response must state whether the employer grants or refuses the request. Importantly, where an employer refuses a request it can only do so on "reasonable business grounds". An employer must also provide details, in writing, of the reasons for the refusal. There is no obligation to provide written reasons where an employer agrees to grant a request.
The Fair Work Act 2009 provides for certain avenues of redress where a right to request by an employee may not have been adequately dealt with.
While an aggrieved employee cannot seek a substantive review of any decision made to decline a request for flexible work arrangements, a remedy can be sought via the Federal Magistrates Court or Federal Court where there has been a failure by an employer to consider a request at all or to consider a request in time or to provide a written response to a request. Where such failures occur, an aggrieved employee can seek from the Court orders that include any order the Court considers appropriate, compensation and penalties. The maximum penalty for an individual is $6,600 and for a corporation $33,000.
Alternatively, an aggrieved employee may in some circumstances be able to bring proceedings against the employer in the Federal Magistrates Court or Federal Court claiming adverse action because of their sex or family or carer's responsibilities.
In limited circumstances, a dispute arising from an employer's refusal to allow for flexible arrangements can also be dealt with by the new Fair Work Australia body but only if the parties have agreed in a contract of employment, enterprise agreement or other written agreement to allow Fair Work Australia to deal with the matter. A similar situation applies where a third party (for example an external mediator) is to be engaged to facilitate the resolution of a dispute.
Right to request ready checklist
With the introduction of this new right to request scheme, national system employers should conduct a flexibility audit to determine whether they are compliance-ready from 1 January 2010.
Importantly, employers preparing for the right to request scheme should:
- check if their existing policies and procedures are compliant with the right to request scheme and, if not, consider what changes should be made;
- review any applicable industrial instruments to determine how they deal with workplace flexibility;
- identify those parts of the business which might expect to receive requests from their employees and have in place strategies to manage workforce expectations (for example, identify positions or types of positions which might lend themselves to a reasonable business case for flexibility and those which do not);
- determine what communications need to be made to the workforce about the scheme in terms of awareness raising and the like;
- educate those whom might have to respond to a request for flexibility are armed with adequate knowledge and have the skills to competently deal with such requests without exposing the organisation to risk; and
- consider how disputes arising from a flexibility request are to be resolved.
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. The NES entitlement also broadens the flexibility debate beyond an issue for working women but for all working Australians.