Flexible Working Arrangements

 In Employment Law

Flexible working arrangements are an increasingly common way for employees to achieve a healthy work life balance. Being able to work non-standard hours or from home can be especially useful for employees who have young children or who live a distance away from their place of employment. And for employers, facilitating flexible working arrangements can improve workplace productivity and morale, decrease absenteeism, increase staff retention, and avoid potential concerns about discrimination.

Some employees have a legal right to request flexible working arrangements under the National Employment Standards (NES), which are contained in the Commonwealth Fair Work Act.

What are flexible working arrangements?

Flexible working arrangements can be anything that suits both the employee and the employer, but commonly include:

  • changed start and finish times
  • working part-time, or for more hours over fewer days
  • working additional hours to make up for time off, or to gain entitlement to time off
  • working from another location, such as home

Who can make a request?

Under the NES, employees may request flexible working arrangements if they –

  • in the case of employees other than casual employees, have worked for their employer for at least 12 months
  • in the case of casual employees, have worked on a regular and systematic basis for the employer for at least 12 months, where there is a reasonable expectation of regular and systematic work

And the requested change in working arrangements is related to the fact that they –

  • are parents or caregivers of school-aged or younger children (including parents returning to work after the birth or adoption of a child)
  • are carers (under the Carer Recognition Act)
  • have a disability
  • are aged 55 or older
  • are experiencing family/domestic violence, or are providing support to an immediate family member or member of their household who is experiencing family/domestic violence

Employees other than those who fit into the above categories may still make a request for flexible working arrangements, but whether or not that request is approved is entirely at their employer’s discretion.

How to make a request

A request for flexible working arrangements must be made in writing and must set out the details of and reasons for the arrangements sought.

Responding to a request

An employer must provide a written response to a request for flexible working arrangements, either accepting or refusing the request, within 21 days of receiving the request. The Award applicable to the employment relationship will state what specific information should be included in the written response.

It is good practice for employers to discuss an employee’s request with them to attempt to reach an agreement before responding. It may be the case that an employee’s proposal is not feasible to an employer, but that a compromise suitable to both the employee and the employer can be reached.

However, it is important to note that employers are under no obligation to approve a request for flexible working arrangements, as long as they can justify their refusal.

Refusing a request

An employer may only refuse a request for flexible working arrangements on reasonable business grounds. These grounds should be communicated in the written response. Reasonable business grounds include, but are not limited to:

  • the arrangement would be too costly for the employer
  • the employer does not have capacity to, or it would be impractical for the employer to change other employees’ working arrangements or to hire new employees to accommodate the arrangement
  • the arrangement would likely cause significant loss in productivity or efficiency, or have a significant negative impact customer service

Considerations

In considering a request for flexible working arrangements, it is important that a balance is struck between the genuine requirements of the job and business and the employer’s capacity to accommodate the employee. Otherwise, employees may have a claim for discrimination or breach of their entitlements.

Employers should consider:

  • the employee’s needs
  • the consequences for the employee if their request is not accommodated
  • whether the work is of a nature appropriate to be performed on the basis of the requested arrangements
  • whether the requested arrangement will have any impact on the employee having an adequate dedicated work area, appropriate furniture, and access to IT systems, equipment and the internet to perform the work (and if not, whether and at what cost those facilities can be organised for the employee)
  • whether the requested arrangement could lead to any privacy, confidentiality, security or safety concerns (and if so, whether these can be abated)

Work Health and Safety

It is important to be aware that employers still have the same work health and safety obligations to employees with flexible working arrangements. This may be particularly significant in relation to employees who work from home.

Why Trust Johnston Withers Lawyers as your Employment Lawyer?

If you’re an employee and you have questions about your entitlements or believe your request to work from home has been unfairly denied, or if you are an employer and need advice about implementing a flexible work policy or responding to an employee’s request for flexible working arrangements – we’re here to help!

Johnston Withers’ employment lawyers have experience in providing advice to both employees and employers in relation to entitlements and workplace relations. If you’d like advice or direction from a lawyer, please contact us on (08) 8231 1110, or get in touch online.

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