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.
Flexible working arrangements can be anything that suits both the employee and the employer, but commonly include:
Under the NES, employees may request flexible working arrangements if they –
And the requested change in working arrangements is related to the fact that they –
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.
A request for flexible working arrangements must be made in writing and must set out the details of and reasons for the arrangements sought.
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.
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:
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:
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.
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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