The Fair Work Act (2009), which covers all Australian employees, allows employees who meet various conditions or have certain family responsibilities, to request flexible working arrangements from their employer. This flexibility relates to working hours and where the work is undertaken. Employers are legally required to provide a formal response under the Fair Work flexibility provisions.

Sandra, an administrative employee, was demanding flexibility in her working hours and the ability to regularly work from home as she now had a school aged child.

The employer was hesitant in that Sandra required consistent supervision to be effective at work and that other staff regularly interacted with at her desk to resolve customer issues. The employer was concerned as they also knew if they denied this request, it could be challenged in the Fair Work Commission. The Fair Work Commission has made it clear that it strongly supports flexibility and family responsibilities.

So was this employer able to reject this request?

Maybe.

In this case we drafted a formal response to Sandra outlining the reasons why her request would be denied. We also stated we would be open to discussing other more limited options. Sandra did not respond well to this and eventually decided to find employment elsewhere.

Some employees and some work situations allow for flexible work arrangements – others do not. Where they don’t it is essential to respond carefully. Simply saying 'no' may well get an employer into legal hot water.

The National Employment Standards, which are part of the Fair Work Act (2009), have provided for flexible working arrangements for employees for some years. The triggers for seeking flexible working arrangements have been progressively broadening.

This flexibility related to hours of work, changes in patterns of work or in the location where work is undertaken – such as working from home.

Flexibility may be requested by a permanent employee, with at least 12 months service or a regular casual, who meets the following requirements:

• is a parent or have responsibility of a school aged child or younger; 
• is a carer; 
• has a disability; 
• are 55 or older;
• are pregnant;
• is experiencing family and domestic violence; 
• provides care or support to an immediate family member or household member who is experiencing family and domestic violence. 

The above list has recently been expanded to include pregnant employees and where the employee, or a member of the employee’s family or household, experiences family or domestic violence. An employee who is returning from parental leave may also request part-time work.

Once the employer receives the written request from the employee (which sets out the details of the change and the reasons for it) the employer must respond.

The employer may refuse the request on reasonable business grounds which are outlined in the Act. Employers are also now proactively respond with what flexibility changes they can allow.

Recent changes also indicated the Fair Work Commission will develop an Award clause to provide for a ‘fair and transparent processes’ for responding to flexibility requests.

The Commission may deal with a dispute about a request by conciliation, mediation and arbitration.
Employers should not ignore a request for flexible work arrangements – a response must be provided.

It is important to note that this is a key area of interest the Fair Work Commission has been developing over several years ‘leading’ employers toward being more family friendly. During COVID new boundaries were explored in flexible working arrangements. Therefore, any response to the employee should be formal and be properly structured as it could be very closely examined if challenged in the Commission.

Hunter Employee Relations can assist your business if you are examining family friendly options as well as formulating a response to such flexibility requests.

Give me a call anytime to talk it through.

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Kind Regards
Michael Schmidt
M 0438 129 728
[email protected]
www.hunteremployeerelations.com.au

Industrial Relations - Employment Law - Workplace Performance