Bending Over Backwards: How flexible do you have to be?

What is the law?

The Fair Work Act (Cth) and State and Federal discrimination legislation provide certain employees with the right to request flexible working arrangements.

Who is eligible to request flexible working arrangements?

Permanent employees with at least 12 months service or casual employees with regular and systematic hours for the last 12 months and an expectation of continuing employment may request flexible working arrangements if they:

• Are a parent or carer of a child who is under school age;
• Have a disability;
• Are over 55 years or older;
• Are experiencing family or domestic violence; or
• Provide care to a family member experiencing domestic violence.

The request must be in writing.

How to respond to a request for flexible working arrangements?

Employers should consider an employee’s request and then document their reasons for accepting or refusing the request. The employer must respond in writing to the request within 21 days and may refuse the request on reasonable business grounds.

What are reasonable business grounds?

Reasonable business grounds may include:

• The cost of accommodating the employer’s request;
• The employer’s ability to re-organise work arrangements; and
• The employer’s business requirements, such as affect on productivity, efficiency, customer service etc.

Examples of flexible working arrangements include:

• Hours of work;
• Patterns of work; and
• Locations of work.

Recent Decision: Refusal to continue flexible working arrangements upheld

In 2016, the NSW Industrial Relations Commission provided some comfort to employers. In this case, two fathers had a long-standing 8-year arrangement with their hospital employer to leave work early to collect their children from school. When the hospital, seeking economic efficiencies, sought to change their hours to align with other staff members, these two employees resisted, arguing that the long-standing arrangement did not adversely impact the hospital or their ability to work.

The Commission dismissed this argument, stating there was a:

“long established right of management to allocate and arrange work … the Company is entitled to decide upon and introduce its own system of working hours”.

What should employers do?

• Carefully document decision making
• Establish where the right to request flexible working arrangements arises – is there an entitlement under an enterprise agreement or written policy
• Respond in writing to a request within 21 days, stating whether the request has been approved or refused. If it has been refused, written reasons must be provided.
• Employers should only refuse requests where they have real and specific operational reasons for doing so.

HR Legal can assist you in developing appropriate flexible work arrangements and policies that reflect your company’s workforce and business needs.

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.