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Employment and Migration Blog

Return to Work – It’s all about that Flex

Posted by Laure Kenworthy on 28 Jun 2021

Undoubtedly, the state of the COVID-19 pandemic in Australia and separately in New South Wales has improved since its height mid-2020. Employers had rushed to send employees home for work and then to ensure they had good work from home (WFH) policies in place (albeit that the latter might have preceded the former).

Now, reports are that most employers have their employees back in the office for majority of the working week. However, this won’t suit everybody. For some, WFH has made its mark and flexibility is not only desired but necessary to accommodate an ongoing balance between home life and work. Eligible employees may wish to request flexible working arrangements and employers should know how to respond.

Requesting Flexible Work Arrangements

The right of an employee to make a request for flexible work arrangements is provided by the National Employment Standards (NES) and some industrial instruments, where applicable. According to the NES, an eligible employee must have completed at least 12 months of continuous service with their employer immediately before making a request for flexible work arrangements. For casual employment, the employee must have been employed on a regular and systematic basis for a sequence of periods of at least 12 months immediately before making a request; and there must be a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

Providing eligibility is satisfied, an employee may only make a request for change to their working arrangements upon recognised grounds, including that the employee:

  • is a parent, or has responsibility for the care of a child who is of school age or younger;
  • is a carer (within the meaning of the Carer Recognition Act 2010);
  • has a disability;
  • is 55 years of age or older;
  • is experiencing domestic violence; and/or,
  • is providing care or support to a member of their immediate family or household, who requires that care or support due to experiencing domestic violence.

The request must be made in writing and include the details of the change sought and the reasons for it. Further, the request may only relate to the following:

  1. Hours of work
  2. Patterns of work
  3. Location of work

Responding to a Request for Flexible Working Arrangements

Employers must provide employees with a written response to their request for flexible working arrangements within 21 days of the request being made, indicating in their response whether the request is approved or rejected. If the request is rejected, the reason/s for refusal must be provided.

Notably, an employer is not required to agree to a request, only to genuinely consider it. If an employer wishes to refuse a request, they may only do so on reasonable business grounds. Reasonable business grounds include:

  • the requested arrangements are too costly;
  • other employee’s working arrangements can’t be changed to accommodate the request;
  • it is otherwise impracticable for the business to accommodate the request; or,
  • the change would result in a significant loss of productivity or have a significant negative impact on customer service.

Generally, an employer’s response should be guided by the principle of fairness in addition to applicable laws, which will continue to apply to the extent that any better flexibility entitlement is provided.

If a dispute arises, the Fair Work Commission has power under the Fair Work Act 2009 (Cth) to hear certain disputes in this respect.

Key Lessons

Employers have certain legal obligations to fulfil when it comes to an employee’s request for flexible working arrangements. An employer who fails to satisfy the NES requirements in respect of a request, or who responds unfairly to a request may put themselves at risk of a claim, such as for adverse action or workplace discrimination. Best practice suggests that an employer responds to each request for flexible work arrangements according to the facts and circumstances of the individual request.

If you require assistance in managing a request for flexible working arrangements or have any questions in respect of the above, please don’t hesitate to contact a member of Coleman Greig’s Employment Law team, who would be more than happy to assist you today.

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