The new safety net for employment rights, the National Employment Standards (NES), includes the right to request “flexible working arrangements” as one of its minimum entitlements.
This standard is designed to assist employees to achieve a balance between their family and work responsibilities. However, it is limited to a right to request.
What is it about?
Employees: your right to request flexible working arrangements
Employees who:
· have completed 12 months continuous service with an employer; or
· if casual, have completed 12 months service and have a reasonable expectation of continuing employment on a regular and systemic basis; and
· have the care of a child of school age or a child with a disability (under 18)
may request a change to their working arrangements such as their hours or the pattern or location of work. This request must be in writing to your employer setting out the specific change/s sought and the reason for the request.
Employers: your right to refuse on reasonable business grounds
Employers can only refuse a request for flexible working arrangements on reasonable business grounds. This refusal must be given in writing within 21 days of receiving a written request from an employee. The NES does not define “reasonable business grounds”. Depending on the particular business involved, “reasonable business grounds” may include:
· the financial impact on your business including the likely effect of the change on productivity or customer / client service;
· the impact on other staff members and / or the inability to arrange work to be performed by other employees
· the inability to find a suitable replacement employee to cover the required work
Employers may also consider providing their own suggestions to accommodate the employee’s request for flexibility.
What if you can’t agree?
An employer’s failure to respond to a request for flexible working arrangements may give rise to an application to Fair Work Australia for breach of the NES. Further, an employer’s refusal of or response to such request may, in some limited circumstances, constitute “adverse action” under the Fair Work Act 2009 and / or provide grounds for a claim of discrimination. As a result, employers may be exposed to claims for a civil penalty of up to $33,000, and / or claims for compensation under anti-discrimination legislation.
We encourage you to seek advice from one of our employment lawyers about the appropriate way to request, or to respond to a request for, flexible arrangements in your workplace.
