As many businesses would be aware, a number of legislative changes commenced on 1 July 2013. Expanded rights for employees to request flexible working arrangements and the need for employers to consider those requests and agree when reasonable, are important for employers to understand. It is particularly important to appreciate that where the request is properly made and in writing, the employer must respond to the request in writing within 21 days. Failure to do so may expose the employer to claims by an employee that the flexibility provisions have been breached.

Background

Since the introduction of the National Employment Standards (NES) into the Fair Work Act 2009 (Cth) (Act) in 2010, employees in certain circumstances have had the legal right to request flexible working arrangements from their employers. Initially, this right only applied for an employee who is a parent or has the responsibility for the care of a child, and that child is under school age or under 18 with a disability.

The application of that right to request has been broadened to include a wider range of employees and to clarify the reasons for which employee requests could be refused. These changes were enacted in the Fair Work Amendment Act 2013 and have been in effect since 1 July 2013.

The following is an overview of the current legislation concerning flexible work arrangements.

What are flexible working arrangements

While not expressly defined nor limited, the Act notes that examples of flexible working arrangements include:

  • Changes in hours of work;
  • Changes in patterns of work; and
  • Changes in location of work.

Creative use of the provisions may result in requests for reduced hours, compressed working weeks, adjusted hours and requests to work remotely, including requests to work from home.

Who may apply?

The Act distinguishes between casual employees and employees that are not casual and provides that both are eligible if they satisfy their respective requirements and any one of the circumstances listed below:

  • For casual employees – only if the employee is a long term casual employee of the employer and has a reasonable expectation of continuing employment by the employer on a regular and systematic basis.
  • For employees other than a casual employee – only if the employee has completed at least 12 months of continuous service with the employer immediately before making the request.

The circumstances in which employees can request flexible arrangements are now as follows:

  • the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;
  • the employee is a carer (within the meaning of the Carer Recognition Act 2010);
  • the employee has a disability;
  • the employee is 55 or older;
  • the employee is experiencing violence from a member of the employee's family;
  • the employee provides care or support to a member of the employee's immediate family, or a member of the employee's household, who requires care or support because the member is experiencing violence from the member's family.
  • The employee is a parent, or has the responsibility for the care, of a child, and is returning to work after taking leave in relation to the birth or the adoption of the child.

How are applications made?

The Act provides that the request must be in writing and must set out the details of the change sought and the reasons for same. What are the employer's obligations?

Employer's Response
The employer must provide a written response to the employee's request within 21 days, stating whether the employer grants or refuses the request and, if the employer refuses the request, the reasons for the refusal.

Reasons for refusal
The Act provides that an employer can only refuse a request on reasonable business grounds. While not limiting these grounds, the Act provides that the following do constitute reasonable business grounds:

  • the requested working arrangements would be too costly for the employer;
  • there is no capacity to change the working arrangements of other employees to accommodate the requested working arrangements;
  • it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the requested working arrangements;
  • the requested working arrangements would be likely to result in a significant loss in efficiency or productivity;
  • the requested working arrangements would be likely to have a significant negative impact on customer service.

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.