Employers: How "stretchy" is that flexible working arrangement you agreed to?
Assisted by Holly Pitt
What is a ‘flexible work arrangement’?
A flexible working arrangement is an agreement between an employee and employer to suit the lifestyle factors of an employee. This could include, for example, a change to start and finish times, split shifts, job sharing roles or working from home. Generally, an employer can refuse these requests if they have reasonable business grounds to do so.
What are ‘reasonable business grounds’?
Reasonable business grounds to refuse a flexible work arrangement request can include:
- the arrangement is too costly;
- other employees’ working arrangements cannot or would not be practical to change to accommodate one individual; or,
- the request would result in a loss of productivity or have a negative customer service impact.
“I want to work from home too”- Can every employee request a flexible work arrangement?
If a person has been working for an employee for at least twelve months, they can seek this kind of arrangement only if it is reasonable and if they:
- are a parent or have the responsibility of a school aged child or younger;
- are a carer;
- have a disability;
- are 55 years or older; or,
- are experiencing family or domestic violence or assisting someone in their family is.
Am I locked in if I let an employee have this kind of flexibility?
In a recent decision (Construction, Forestry, Mining and Energy Union (New South Wales Branch) v South Western Sydney Local Health District  NSWIRComm 1047) it was decided that an employer was within its rights to terminate a longstanding flexible working arrangement that enabled two employees to start and finish work an hour earlier than their colleagues. This arrangement had been in place for eight years so that the employees could collect their primary school children at around 3pm each afternoon. Both employees worked 6am-2:30pm days, with their colleagues in the same department working from 7am-3:30pm. The employees were initially given four weeks’ notice of the change which was then extended to a 12-month period, during which the employees would be expected to make alternate arrangements.
The employees’ union claimed that this was unreasonable, given the longstanding arrangement and the practical reason for which it was established, however their claim was dismissed on reasonable business grounds. It was held that the employer had put them back to regular working hours to improve operational efficiency, reduce costs and facilitate supervision. As the employer was a hospital, the Commissioner decided that standardised hours for maintenance workers would improve efficiency, which would enhance clinical care.
It is essential that changes for employees are applied with both reasonable notice and a reasonable adjustment period. In this case the four weeks’ notice, the ensuing consultation, and the 12-month extension period made the changes reasonable.
The lesson for employers?
Flexible working arrangements have the potential to improve work performance and benefit employees by accommodating lifestyle considerations. However, when operational costs and efficiency are detrimentally affected because of these arrangements, they can be changed, but it is essential to do so fairly.
If you would like to discuss flexible working arrangements in your workplace or for yourself, please contact: