From 1 December 2018, modern employment awards now subject employers to increased obligations in relation to flexible work arrangements. The Fair Work Act (2009) sets out the eligibility requirements and steps that an employee is required to 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 makes a request for flexible work; and
  • when you, as an employer, can refuse a request for flexible work.

Modern employment awards set out the minimum employment standards for specific industries or occupations. These standards apply in addition to the National Employment Standards.

What Is Flexible Work?

Flexible work covers a wider spectrum of arrangements than merely offering 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 an employer to refuse an employee’s request for flexible work. Under the law, an employer must accept a flexible working request by an eligible employee unless “reasonable business grounds” can be argued. Where a modern employment 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 at the same employer regularly for at least 12 months; and
  • their regular work with the employer is reasonably likely to continue.

How Should I Handle a Request for Flexible Work?

Firstly, when you receive a request for flexible work, you must discuss the request 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. Your response must include:

  • 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, any suitable alternatives that can be offered instead of the proposed arrangement.

When Can an Employee Refuse a Request for Flexible Work?

You can refuse an employee’s request for flexible working arrangements if you can satisfy any of the following “reasonable business grounds”:

  • the proposed arrangement would burden you with too much additional cost;
  • there is no capacity to change the working arrangements of other employees;
  • 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, it is important to note that you also have an obligation to genuinely try to reach an agreement with the employee.

As such, the initial conversation between the employer and employee must consider:

  • the needs of the employee;
  • the consequences for the employee if their request is refused; and
  • any reasonable business grounds.

What Happens if an Employer Breaches Their Obligations?

A person or a business that breaches their obligations under the Fair Work Act may face the following Court-ordered penalties per breach, including up to:

  • $12,600 for individuals; or
  • $63,000 for companies.

Also, note that your business could suffer reputational and commercial damage if you fail to uphold your obligations.

Key Takeaways

As a result of amendments to Australian law, you, as an employer, now face increased obligations to provide flexible working arrangements. If an employee is entitled to request flexible working arrangements, you must accept the request unless you can argue reasonable business grounds. In addition, you have an obligation to genuinely try to reach an agreement with changes regarding work arrangements. It is important to ensure that your business’ policies and practices comply with these obligations. If you have questions about flexible working arrangments, contact LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.

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