With the commencement of the National Employment Standards (NES)
on 1 January 2010 it is critical that employers
understand their obligations when it comes to employee requests for
flexible working arrangements.
The new provisions not only create a legal right for employees
to request flexible working arrangements, but potentially increase
the risk of carer related discrimination claims where flexible
working arrangement requests are refused by employers without
This bulletin provides employers with practical steps to respond
to employee requests for flexible working arrangements.
Flexible working arrangements
An employee has a right to request flexible working arrangements
where the employee:
has completed 12 months continuous service
if the employee is a casual, the employee is a long term casual
with a reasonable expectation of continuing employment on a regular
and systematic basis and
the employee is either a parent of or has the responsibility
for the care of a child under school age or a child with a
disability (under 18 years of age).
Making the request
The NES sets out a clear procedure for the making of the
request by the employee.
Employees must make the request in writing and set out details
of the change sought and the reasons for the change.
'Flexible working arrangements' are not defined by the
NES and consequently there is no limit or restriction on the type
of flexible arrangements that might be agreed upon by an employer
and employee. Examples of flexible working arrangements
changes in hours of work such as part-time work
changes in patterns of work such as changes to start or finish
a change in location of work such as working from home.
The employer must respond to the request
The employer must give the employee a written response to the
request within 21 days, stating whether the
request has been granted or refused.
Refusing the request
A request for flexible working arrangements can only be refused
on reasonable business grounds.
Reasonable business grounds are not exhaustively defined by the
NES, however, reasonable business grounds
the impact on the business of accommodating the employee's
request including financial cost, efficiency, productivity and
the employer's ability to organise work arrangements,
the employer's ability to recruit a replacement employee or
the practicality of the arrangements that may need to be put in
place to accommodate the employee's request.
If the request is refused the written response to the employee
must include details of the reasons for the
Implications for employers
The new flexible working arrangements create legal risks for
Employers must ensure that they have appropriate procedures in
place to comply with the NES requirements.
It is also likely that the new right to request flexible working
arrangement will increase employee awareness of anti-discrimination
laws relating to carers obligations and flexible working
Employers should also be mindful of the new general protection
provisions of the Fair Work Act which could result in claims of
adverse action and discrimination during employment as well as
resulting in termination of employment.
What should employers do?
Put appropriate procedures in place to deal with requests for
flexible working arrangements that comply with the NES
Provide refresher training to supervisors and managers about
their obligations when dealing with requests for flexible working
Give proper consideration to requests made by employees for
part time work or changes to their normal working arrangements
because of their responsibilities as carers.
We can assist you with training, policy development and reviews
and legal risk management advice when considering requests for
flexible work arrangements.
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.
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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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