Flexible Working Arrangments and Employer Obligations

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A request for a flexible working arrangement is one of the ten National Employment Standards (NES) that apply to all employees in the Federal workplace relations system (i.e. every employee in Australia except for those employed in the state government sector and local government employees).

1. Who Can Make the Request?

1.1 Employees

The NES states than an employee who is a parent, or has responsibility for the care, of a child may request the employer for a change in working arrangements to assist the employee to care for the child if the child:

(a) is under school age; or

(b) is under 18 and has a disability.

1.2 Casual Employees

A casual employee is not entitled to make the request unless the casual employee:

1.   is a long term casual employee of the employer immediately before making the request; and

2. has a reasonable expectation of continuing employment by the employer on a regular
and systematic basis.

2. Changes in working arrangements

Examples of changes to working arrangements include:

  1. changes in hours of work (such as a reduction in hours, part time work or changes to start and finish times),
  2. changes in patterns of work (change in shifts, split shifts, job share), and/or
  3. changes in location of work (such as working from home or participation in meetings by telephone)

The employee is not entitled to make the request unless the employee has completed at least 12 months of continuous service with the employer immediately before making the request.

3. How is the Request to be made?

The request from the employee must:

(a) be in writing; and

(b) set out details of the change sought and of the reasons for the change.

If an employee makes a verbal request, the employer should ask the employee to make the
request in writing.

4.  Employer Response

The employer must give the employee a written response to the request within 21 days, stating whether the employer grants or refuses the request.

The employer may refuse the request only on reasonable business grounds. If the employer refuses the request, the written response must include details of the reasons for the refusal.

The NES does not provide a definition of what constitutes reasonable business grounds for refusing a request. However, factors that may be relevant could include:

(a) The effect on the workplace and the employer’s business of approving the request, including the financial impact,

(b) The likely impact on efficiency, productivity and customer service,

(c) The inability to organise work among existing staff,

(d) The inability to recruit a replacement employee,

(e) The practicality of the arrangement that may need to be put in place to accommodate the employee’s request.

The NES does not require the employer to choose between granting an employee’s request in full or refusing the request. Rather, the employer and the employee are encouraged to discuss their working arrangements and, where possible, reach an agreement that balances both their needs.

Summary

If an employee makes a request for flexible working arrangements, you must first determine that they fall within the class of employees able to make such a request. If so, then you should ask that the request be detailed in writing.

It is important for employer’s to ensure that they provide a written response to the request within 21 days of receiving it.

The written response should clearly state on what facts or documentation that the decision has been made, any subsequent amendment to the initial request and may also impose reasonable review dates.

If you need assistance to help determine whether a request is valid, whether you have reasonable business grounds to refuse a request or any further information regarding flexible working arrangements please contact Partner, Christie Howson on 4925 2077.

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