Following the Covid-19 pandemic, ideas around work-life balance and flexible work arrangements have become more relevant than ever. As an employer, you have likely experienced an increase in staff members seeking to work a different span of hours, from locations other than the workplace, or even fewer hours. You may have also had to adapt your recruitment processes and offer greater flexibility to candidates than ever before.
As attitudes regarding flexible work arrangements have evolved in recent years, you must be aware of your obligations under Australian employment law. Importantly, when providing your employees with flexible work entitlements, you must do so legally. Modern Awards and the Fair Work Act 2009 (Cth) set out the eligibility requirements and steps that an employee must take to request a flexible working arrangement. This article will discuss:
- who may request a flexible working arrangement;
- what the process is if an employee requests flexible work; and
- when you, as an employer, can refuse a request for flexible work.
What is Flexible Work?
Flexible work covers a wider spectrum of arrangements than merely part-time or casual work. Flexible work also covers aspects such as:
- changes to hours;
- patterns of working (for example, job sharing); and
- work locations.
It is now more difficult for you to refuse an employee’s request for flexible work. Under the law, you must accept a flexible working request by an eligible employee unless “reasonable business grounds” can be argued. Where a modern award applies, you have an obligation to genuinely try to reach an agreement on a change in a working arrangement.
Who May Request a Flexible Working Arrangement?
Employees with at least 12 months of continuous service are entitled to request a flexible working arrangement if they:
- are the primary carer of a school-aged child or younger;
- are carers;
- have a disability;
- are 55 years or older;
- are experiencing domestic violence; or
- provide care or support to a member of their household or immediate family due to domestic violence.
Casual employees that fit into one or more of the above categories are also permitted to request a flexible working arrangement if:
- they have been working with you on a regular and systematic basis for at least 12 months; and
- their regular work with you is reasonably likely to continue.
How Should I Handle a Request for Flexible Work?
Firstly, if your employee is covered by a modern award, you must discuss the request for flexible work with the employee and genuinely try to reach an agreement.
Following the initial meeting, you must provide the employee with a written response to their request within 21 days of receiving their request. Your response must include the following:
- a clear statement of whether you accept or decline the request;
- the reasons for any refusal of a request; and
- if you refuse the request, suitable alternatives you can offer instead of the proposed arrangement.
When Can an Employer Refuse a Request for Flexible Work?
You can refuse an employee’s request for flexible working arrangements if you have “reasonable business grounds”, which include the following:
- the proposed arrangement would burden you with too much additional cost;
- there is no capacity to change the working arrangements of other employees to accommodate the request;
- it would be impractical to make any necessary changes to accommodate the request;
- the proposed arrangement would likely result in a significant reduction in efficiency and productivity; and
- the proposed arrangement would likely have a significant negative impact on customer service.
However, if a modern award covers your employee, it is important to note that you also have an obligation to try to reach an agreement with the employee genuinely. As such, after the initial conversation between you and your employee, you must consider the following:
- the needs of the employee;
- the consequences for the employee if you refuse their request; and
- any reasonable business grounds for refusing the request.
What Happens if an Employer Breaches Their Obligations?
Unreasonably refusing your employee’s request for flexible working or otherwise breaching your obligations under the Fair Work Act may result in your employee bringing an employment claim to the Fair Work Commission. You or your business may also face court-ordered penalties per breach, up to
- $13,200 for individuals; or
- $66,600 for companies.
Considering the changing expectations of workers and greater offers of flexibility across competing businesses, a breach of your obligations regarding flexible work arrangements could also cause your business to suffer reputational and commercial damage.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
Key Takeaways
Failing to meet your obligations to provide flexible working arrangements can amount to a breach of employment law. If your employee is entitled to request flexible working arrangements, you must accept the request unless you can argue reasonable business grounds. In addition, if a modern award covers your employee, you have an obligation to genuinely try to reach an agreement with changes regarding work arrangements. Therefore, it is important to ensure that your business policies and practices comply with these obligations.
If you need assistance understanding your obligations regarding flexible work, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
Whilst it may be best practice to consider all requests for flexibility, your legal obligation does not arise until your eligible employee has at least 12 months of continuous service.
No. All requests for flexible work arrangements must be made in writing. Your employee should set out the details of their request and the reasons for the request. As an employer, you are obligated to provide a written response to the request within 21 days.
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