Employees may have a legal right to request a flexible work arrangement with their employer. Knowing exactly when the legal right arises is important for any business that wants to ensure they are complying with the Fair Work Act 2009 (Cth). When a request is made, employers need to be aware of their obligations, including whether or not they can refuse an employee request for a flexible work arrangement.
What is a flexible work arrangement?
A flexible work arrangement aims to find the all-sought-after work/life balance. Arrangements can take varied forms: job sharing, part-time hours, varied start and finish times, half days or work from home capabilities. The aim of the arrangement is to reach an agreement that suits both the employee and employer.
Can anyone make a request?
The legal right to be able to request flexible work arrangements arises when an employee has worked for an employer for at least 12 months. This applies for people who work on either a full-time or part-time basis. If an employee is hired on a casual basis they are also able to request flexible work arrangements if they are considered a long-term employee with a reasonable expectation of ongoing employment. Casual employees who have worked regularly and systematically for at least 12 months can be considered long-term casual employees.
There are also certain circumstances for when this legal right arises. An employee can request for a flexible work arrangement if they are a: parent, carer, person with a disability, person aged 55 or older, experiencing violence from a member of the family or a carer of someone who is experiencing violence from a member of the family. In the event that an employee doesn’t meet the above criteria, the employment agreement should be reviewed to clarify whether or not requests for flexible work arrangements can be made.
How do employees make a request?
A formal request under the Fair Work Act 2009 must be made in writing and given to the employer. The request needs to outline the change that the employee is seeking and the reasons for such a change. The employee can also, if he or she wishes, make some suggestions about how the changes can be arranged so that disruption to the employer’s business is minimized.
In some employment agreements or workplace policies, there may be a set procedure in place on how to request flexible work arrangements.
What are an employer’s obligations?
It is important for employers to know that once they receive a request, they need to respond in writing within 21 days. The response should state whether the employer has granted or refused the request. If the request is refused, the employer must have reasonable business grounds and include reasons for the refusal in their reply.
Some reasonable business grounds may include:
- that the proposed change is too costly to be implemented by the employer;
- that there is no capacity for the employer to grant the proposed change, as it may require changing the work arrangements for other employees;
- that the proposed change would significantly reduce efficiency and/or productivity; or
- that the proposed change would have negative impacts on customer service.
Employers should be careful with their responses to requests for flexible work arrangements.
If you are an employer and you are unsure of whether you have reasonable grounds to reject a request for flexible work arrangements, you should speak to an experienced employment lawyer. The inability to accommodate requests for flexible work arrangements may result in an employee leaving non-voluntarily, also known as constructive dismissal, which could have significant consequences for the employer.
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