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 reasonableness.

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.

GENERAL PRINCIPLES

  • 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 is inconvenient.
  • 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 proper supervision.
  • 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 or possible.

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, provide examples.
  • Identify any problems that may have occurred in the past if the work was undertaken in the manner requested by the employee or another employee.
  • 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 timetables).
  • 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 wellbeing.
  • 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 matters.

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.

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