Managing people

Flexible work requests: what is meant by ‘school age’?

We look at a scenario of an employee wanting to change their hours to accommodate caring for a school-age child. Read on to find out what the Fair Work Act defines as school age.

23 September 2021

The Fair Work Act states that an employee with more than 12 months' service is able to request a flexible working arrangement if they are a parent of a child 'school-age or under'. We are not sure what this term means. Our understanding is that school-age is the age that a person commences school in accordance with the relevant state or territory legislation. 

For example, if the age in Victoria is five, does that mean only parents of children five years or younger have a legal right to request a flexible working arrangement? Or is 'school age' taken more generally and means a child of an age to be at school? If so, does that mean primary school or secondary school or both?

The Fair Work Act was amended about four years ago to expand the meaning of' school age' about a request for flexible working arrangements. This right was extended to an employee who is the parent of or has responsibility for caring for a child of school age. This means a child who is required to attend school instead of a child who is required to start attending school or younger.

The Fair Work Act (s12) defines “school-age” as the age is a law that requires a child of the state or territory in which the child lives to attend school.

The meaning of the phrase 'has responsibility for the care of a child’ is not restricted to a person who may have a legal responsibility for the care of a child but is intended to include various parent-like relationships such as guardianship and fostering arrangements.

The Act extends the right to request flexible working arrangements to an employee who is a carer (within the meaning of the Carer Recognition Act 2010) has a disability is 55 or older, is experiencing violence from a member of the employee’s family or who provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family.

The Act also provides that an employee who is a parent or has responsibility for the care of a child – and is returning to work after taking leave about the birth or adoption of the child – also has the right to request part-time work to assist the employee is caring for a child.

Eligible employee

An employee (including a long-term casual employee) is not entitled to a request unless they have completed at least 12 months of continuous service with an employer immediately before making the request.

Under the Fair Work Act (s22(4)), service concerning requests for flexible working arrangements includes all paid and unpaid absences but excludes a period of unauthorised leave.

An employee’s request must be in writing and set out details of the changes sought and the reasons for the change. The employer must give the employee a written response within 21 days, stating whether the employer grants or refuses the request. If refused, the employer then must provide written reasons for the refusal.

Reasonable business grounds

Under the National Employment Standards, an employer may lawfully refuse a request for flexible work on ‘reasonable business grounds.

Reasonable business grounds include:

  • the new work arrangements requested by the employee would be too costly for the employer
  • there is no capacity to change the work arrangements of other employees to accommodate the new work arrangements requested by the employee
  • it would be impractical to change the work arrangements of other employees or recruit new employees, to accommodate the new work arrangements requested by the employee
  • the new work arrangements requested by the employee would be likely to result in a significant loss of efficiency or productivity, and
  • the new work arrangements requested by the employee would likely have a significant negative impact on customer service.

If an employee is dissatisfied with the employer’s refusal, the employee may notify a dispute or lodge a claim depending upon the circumstances.

Dispute arbitration if request denied – enterprise agreements

The Fair Work Act (s739(2)) requires a written agreement of a particular nature between the parties to empower the Fair Work Commission to deal with a dispute about whether an employer had reasonable business grounds to reject a request for flexible working arrangements.

This means there needs to be a specific clause in an enterprise agreement empowering the Commission to deal with a dispute about whether an employer had reasonable business grounds to reject a request for flexible working arrangements. A general clause dealing with disputes about the “employment relationship” and the National Employment Standards will not suffice. See Sims v StarTrak Express Pty Ltd t/a StarTrak [2017] FWC 3018

The bottom line: Provided an employee has served the qualification period of employment, a request for a flexible working arrangement can be made provided a child is of an age where they are required to attend school under the relevant state or territory legislation.

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