NES Series: Flexible Working Arrangements

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NES Series: Flexible Working Arrangements

NES Series: Flexible Working Arrangements

 

This article is the first in a series of articles outlining the operation of various National Employment Standards under the Fair Work Act 2009 (Cth).

 Did you know that employees have the right to request flexible working arrangements under the Fair Work Act 2009 (Cth) (“Fair Work Act”)?  This right is a National Employment Standard (“NES”) under the Fair Work Act available to certain employees, with strict timeframes for compliance by employers.

 

Entitlement

The right to request flexible working arrangements arises for employees who have at least 12 months’ continuous service and long term casuals who have a reasonable expectation of continuing regular and systematic employment.

These employees can request a change to their working arrangements where the change relates to any of the circumstances listed in the Fair Work Act.  These circumstances include being a carer, having a disability, being a parent or having responsibility for a child who is school age or younger, being 55 or older, experiencing violence from a member of their family or providing care or support to a member of their immediate family or household, who requires care or support because the member is experiencing violence from their family.

 

Process

A request for flexible working arrangements must be in writing and set out the details of the change and reasons for the change.  The fact that there is no specific form that must be completed can potentially make it difficult for employers to identify when a request under the Fair Work Act has been made.

Employers have 21 days to provide a written response to the request, either granting or refusing it (and providing reasons for the refusal).  A failure to respond within the 21 day period is a breach of the Fair Work Act.  In Poppy v Service to Youth Council Incorporated [2014] FCA 656 and Stanley v Service to Youth Council Incorporated [2014] FCA 643, the Respondent was required to pay $2,500.00 and $4,000.00 (respectively) in penalties to the Applicants, after failing to respond to their requests for flexible working arrangements within the 21 day time period.

Requests can only be refused on “reasonable business grounds”.  The Fair Work Act outlines what can constitute reasonable business grounds, although the definition is not limited by the Fair Work Act.  Examples of “reasonable business grounds” under the Fair Work Act include cost, incapacity to change the working arrangements of other employees and impracticality.

There are limited avenues for an employee to appeal a refusal, and usually an employer and employee must agree (in, for example, an enterprise agreement, contract or policies and procedures) that such a dispute can be dealt with by the Fair Work Commission.

 

Discrimination

 Requesting flexible working arrangements has been found to be a workplace right for the purposes of general protections applications (Heraud v Roy Morgan Research Ltd [2016] FCCA 185), and adverse treatment associated with a protected attribute can amount to discrimination under both State and Federal legislation, and is protected by the general protections provisions of the Fair Work Act.  As such, employers should take care to ensure their actions associated with a request for flexible working arrangements do not breach other employees’ rights.

 

Summary

The Fair Work Act sets out strict timeframes for compliance with responding to requests for flexible working arrangements.  Simply missing the timeframe can result in penalties against an employer, and employers should be mindful that their conduct surrounding requests for flexible working arrangements does not risk breaching other employee rights, such as general protections and discrimination rights.  If you require assistance with complying with requests for flexible working relationships please contact us.

 

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.

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