Australia: Flexible Workplace Arrangements: What Constitutes Reasonable Efforts?

Key Point

  • While there is no blanket requirement that an employer must provide flexible work arrangements for employees returning from maternity leave under NSW law, "reasonable efforts" must be demonstrated.

In December 2005, the full bench of the New South Wales Administrative Decisions Tribunal delivered the decision of Tleyji v The TravelSpirit Group [2005] NSWADT 294. The decision provides a timely reminder to employers of their obligations when responding to issues arising in the workplace concerning carers' responsibilities. Tleyji illustrates some of the common pitfalls that employees face when dealing with requests for flexible workplace arrangements.


Ms Tleyji was a senior travel consultant at the TravelSpirit Group. On return to work after a year of maternity leave, Ms Tleyji alleged that her employer, TravelSpirit, unlawfully discriminated against her in employment on the grounds of carers' responsibility, gender and race.

In relation to carers' responsibilities and gender, Ms Tleyji made the following claims:

  • Her conditions of employment had been changed to her detriment. Some of the changes included the narrowing the scope of her duties, the prohibition on staff from taking a Rostered Day Off on a Monday or a Friday, the exclusion of Ms Tleyji from a conference and the creation of a hostile work environment by colleagues on her return to work.
  • TravelSpirit refused to allow her to return to work part-time before her scheduled return from maternity leave. A part-time position was advertised on TravelSpirit's website before Ms Tleyji's return to work.
  • TravelSpirit refused to allow her to work part-time on her return from maternity leave, and required her to work full-time on her return.

TravelSpirit made some efforts to address Ms Tleyji's request, including offering her two part-time positions in the city office. Ms Tleyji argued however that the roles were inferior to her current role as senior travel consultant as the position was lower paid, involved less skills and was located in the city, which would mean a longer commute.

In relation to race, Ms Tleyji claimed that she had been discriminated against on the basis of race when she was directed by her manager not to speak Arabic at her desk and that any future calls in which she spoke Arabic were to be taken in the upstairs staffroom.


The Tribunal rejected Ms Tleyji's claim that there had been a change in the conditions of her employment on account of gender or carers' responsibilities. The Tribunal held that the changes to employment conditions would have applied to a "senior travel consultant without carers' responsibilities… who had retuned from leave after an extended period" as well as a male travel consultant. Therefore, Ms Tleyji was not treated any differently than a person in either of those comparable categories. The Tribunal also held that TravelSpirit was not obliged to offer Ms Tleyji the part-time position advertised on its website.

However, the Tribunal upheld the claim that TravelSpirit's refusal to allow Ms Tleyji to work part-time on return to work was discriminatory. TravelSpirit had not made "reasonable efforts" to accommodate Ms Tleyji's request for part-time work. Even though TravelSpirit had made some efforts to accommodate Ms Tleyji, the Tribunal found that there was no "real consideration" given to whether Ms Tleyji could perform the work on a part-time basis.

In this regard, the Tribunal noted that while TravelSpirit had given some consideration to allowing Ms Tleyji to work part-time, it had not given full and proper consideration to whether she could perform the role as a senior travel consultant on a part-time basis under the arrangements she had proposed or some modified form of it.

The Tribunal pointed to examples of what TravelSpirit could have done to satisfactorily demonstrate that they had made a "reasonable effort" and had given "real consideration" to Ms Tleyji's request to work part-time. These included:

  • asking the current part-time employees whether they would be interested in a full time position, even for a short period (enabling Ms Tleyji to potentially "swap" into a part-time role);
  • asking Ms Tleyji whether she might be prepared to work more hours or job share with another employee;
  • considering a trial period to put Ms Tleyji's proposal into practice.

Despite this finding, the Tribunal made no order for damages as Ms Tleyji had not sought either economic or non-economic relief in relation to that aspect of her complaint.
The Tribunal upheld the race allegation and awarded Ms Tleyji an amount of $5,000 for non-economic loss.


The carers' responsibility ground was first introduced in 2003 by amending legislation to the NSW anti-discrimination legislation. Two years forward, Tleyji continues to illustrate the importance of making proper assessments in relation to requests for flexible workplace arrangements.

Moreover, while there is no blanket requirement that an employer must provide flexible work arrangements for employees returning from maternity leave, "reasonable efforts" need to be demonstrated.

Cases like Tleyji also demonstrate the importance of properly managing expectations of employees taking a period of maternity leave both before commencing and prior to returning from the leave. It would be prudent for employers to consider strategies to help reintegrate employees into the workplace who have been on leave for an extended period of time. Such initiatives may include:

  • towards the end of the leave period, keeping the employee up to date with changes to workplace practices;
  • inviting the employee to meet new team members before returning to work;
  • maintaining open channels of communication between the employee and management; and
  • adopting a consultative approach when dealing with return to work issues that arise.

Thanks to Deborah Itzkowic for her help in writing this article.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.