Flexible working hours
Workplace flexibility is a key contributor to strong organisational performance. One method to achieve such flexibility is through the provision of flexible working arrangements.
Who is eligible to make a request for a flexible working arrangement?
The National Employment Standards (NES) recommends that certain groups of employees can request flexible working arrangements, including:
- employees with caring responsibilities in accordance with the Carer Recognition Act 2010
- parents or guardians with the responsibility of caring for a child who is school age or younger (eg, the age at which the child is required by the applicable state law to start attending school), or a child under 18 years with a disability
- employees with a disability
- employees who are 55 years or older
- employees who are experiencing family violence or who are caring or supporting a family or household member who is experiencing family violence.
Employees in these groups must have at least 12 months continuous service to be eligible to make a request for work flexibility with their employer. Long-term casuals with at least 12 months of sequential periods of employment and an expectation of continuing employment are also eligible to make a request for flexible working arrangements.
Examples of flexible working arrangements:
- changes in hours of work (reduction/ increases in hours worked, changes to start or finish times)
- changes in patterns of work (working extra hours for taking time off)
- changes in location of work (working from home or another location)
- requests for part-time employment or job share arrangements
- arrangements for time off in lieu of being paid overtime.
You can negotiate other flexible arrangements as long as it suits both the employee and employer.
When requesting (and responding to a request for) flexible working arrangements, the employee must make their request for flexible working arrangements in writing and detail the change sought and reasons for the change. An employer must give the employee a written response to the request within 21 days, stating whether they grant or refuse the request. A new modern award provision introduced in late 2018 requires employers to genuinely discuss the request with the employee before providing a written response. The purpose of these discussions is to ascertain whether any other suitable agreement can be reached (particularly if the employee’s original request is not feasible).
If the employer refuses the request, the written response must include lawful reasons for the refusal. All requests for flexible working arrangements must be seriously considered by the employer, but may be refused only where reasonable business grounds exist.
The Fair Work Act 2009 does not provide a definition of what constitutes ‘reasonable business grounds’ for refusing a request, but employers should consider a non-exhaustive list of reasons that may be relevant, which may include:
- the impairment on the workplace and the employer‘s business on approving the request, including the financial impact of doing so and the impact on efficiency, productivity and customer service
- the difficulty or inability to reorganise work among existing staff
- the inability to recruit a replacement employee or the practicality or otherwise of the arrangements that may need to be put in place to accommodate the employee‘s request.
Can a refusal of a request be challenged?
If the employee making the request is covered by a modern award (such as the Health Professionals and Support Services Award 2010), dispute resolution provisions, which exist in all modern awards, should be followed if a request is refused. Employers must either approve or refuse an employee’s request in writing within 21 days. If the request is refused, the employer must also include reasons for the refusal. It is a contravention of the Fair Work Act 2009 if an employer does not respond according to these requirements or refuses the request on unlawful or discriminatory grounds.
There is no requirement for an employer to agree to a request for flexible working arrangements. However, the Fair Work Act 2009 empowers the Fair Work Commission to deal with a dispute about whether an employer had reasonable business grounds for refusing a request. This generally only happens if the parties to the dispute have agreed in an employment contract, enterprise agreement or other written agreement.
Minimum wage increase (applicable to the national minimum wage and minimum wages in all modern awards) has been in effect since the first full pay period commencing on or after 1 July 2019.
Wentworth Advantage operates the HR in Practice workplace relations advisory service for APA Business group members. If you have any questions about this article, contact the HR in Practice service on email@example.com. For more information on the benefits of joining the Business group, email firstname.lastname@example.org or call 1300 306 622.
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