When companies receive employee requests for flexible working
arrangements, understanding if they can accommodate their
employee's need for flexibility, whilst still maintaining their
business and client interests can be a difficult balancing act.
In a business environment where there are competing interests
between employers, employees and clients it's difficult to
strike the right balance in order to preserve productivity and
profitability, whilst still meeting the needs of your employees and
clients. This very balancing act may arise where an employee
requests flexible working arrangements in the workplace.
Understanding how, when and if you can accommodate your
employee's need for flexibility whilst still maintaining your
business and client interests, is an important factor in the
The National Employment Standards provide employees with a right
to 'request' flexible working arrangements in regard to
hours, patterns and locations of work. The request may be made in
writing by an employee who has completed at least 12 months
continuous service with the employer and is either a carer, has a
disability, is over 55, is experiencing domestic violence or needs
to care for someone who is.
The right to request flexible working arrangements is just that
- a right to request. It is not an entitlement to have flexible
working practices provided when requested. While it is important to
consider and discuss alternative arrangements with an employee, it
is also acceptable for an employer to refuse the request based on
the reasonable needs of their business.
Reasonable business grounds upon which an employer may refuse a
request can include:
The cost of implementing the arrangements would be
The effect on other employees and their working arrangements;
The arrangements would result in a significant loss of
In a case heard by the Equal Opportunities Tribunal in South
Australia, it was decided that removing the flexible working
arrangements put in place for an employee to commence work at 10am
rather than 9am to care for her elderly farther was not an
infringement of the employee's rights nor was it a case of
unfavourable treatment or bullying. The Tribunal accepted that the
employer had tried to accommodate the employee over a number of
years but the arrangements had ultimately resulted in difficulty
and increased stress and tension amongst the other staff.
Where a request for flexible working arrangements is made the
employer must advise the employee of their decision in writing
within 21 days of the request. The employer does not need to choose
between accepting or rejecting the request put forward by the
employee. Instead, the employer may choose to negotiate and discuss
alternative arrangements, if any, that could be made to accommodate
the employee and the business before making their decision.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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