Requests for flexible work practices have been gaining momentum
in many workplaces. Employers are uncertain as to whether a
particular employee request needs to be accommodated or not as
applicable legislation refers to the abstract concept of
The Fair Work Act 2009 (Cth) speaks of employers having
to demonstrate "reasonable business grounds" in order to
reject a flexible work request by an employee with carer
responsibilities. Similarly, discrimination legislation refers to
reasonableness and lists certain non-exhaustive factors employers
must take into account, none of which are determinative.
There is no hard and fast rule to determine what is reasonable.
Whether an employer can show it has acted reasonably will depend on
the individual type of request or accommodation being sought.
Below we have outlined guidelines that employers can use to
consider and respond to requests for flexibility.
Whether a request is reasonable is not judged by what an
employer desires or has a preference for.
An employee's request cannot be rejected merely because it
Whether a request is reasonable will depend on the seniority of
the employee, the type of work they perform and the manner in which
the work is performed.
Courts and tribunals have considered factors such as cost,
efficiency, impact on health and safety, availability of
alternatives, impact on good industrial relations and the impact on
An employer that rejects a request for flexible work must
usually be able to point to one or more of the above factors. More
importantly, it must be able to establish that the matters relied
upon are significant rather than minor and real rather than assumed
CHECKLIST OF FLEXIBLE WORK REQUESTS CONSIDERATION
We recommend to our clients that the relevant line or
operational supervisor should, at first instance, conduct the
assessment of the flexible work request. This assessment should
consider and record in writing the following:
The reason or reasons they believe the request is less
satisfactory than the work being performed as normal.
For each of the above reasons, it should outline the extent to
which they are less satisfactory (eg the extent of any cost
difference, the extent of any disruption etc) and if necessary,
Identify any problems that may have occurred in the past if the
work was undertaken in the manner requested by the employee or
Identify whether and how the request is inconsistent with, or
will impede delivery of set operational requirements (eg delivery
of service at mandatory set times or in accordance with set
Identify any adverse consequences of the work being performed
in the way sought by the employee including any significant impact
on collaboration with other staff, supervision and access to
necessary training and information communication.
Assess the impact, if any, on other staff as a result of the
flexible request, including their workload, hours and general
Assess the real impact on customers or customer service.
Consider whether and how the request impacts on the need for
"continuity" of the work or client service.
As much detail should be recorded as possible about the above
It is important that specific evidence or knowledge is referred
to and recorded rather than assumptions or speculation.
Employers should also consider whether a comprehensive flexible
work policy should be implemented that outlines the process for
applying for a flexible work arrangement and the considerations
that will be taken into account in the decision-making process.
The flexible work policy can outline in general terms how a
request for flexible work policy will be assessed, including in
circumstances where there are already other employees undertaking
similar flexible practices. It should also state that any flexible
workplace practices agreed to will be reviewed regularly.
Employers should not adopt a blanket policy that excludes all
employees or groups of employees from flexible work practices as
this will rarely be consistent an assessment of reasonableness or
reasonable business grounds. Any policy request should still be
considered on an individual basis.
This publication is intended as a general overview and
discussion of the subjects dealt with. It is not intended to be,
and should not used as, a substitute for taking legal advice in any
specific situation. DLA Piper Australia will accept no
responsibility for any actions taken or not taken on the basis of
DLA Piper Australia is part of DLA Piper, a global law firm,
operating through various separate and distinct legal entities. For
further information, please refer to www.dlapiper.com
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