No ‘employer of choice’ would be caught dead without an impressive list of flexible work options. And it makes sense, given that workplace flexibility has been linked to increased productivity, better staff retention and happier employees.
But what degree of flexibility is an employer legally required to offer?
Legal right to request flexible work arrangements
Certain categories of employees have a legal right to request flexible working arrangements under the Fair Work Act 2009, provided the request is made because of the employee’s particular circumstances.
Who has the right to make a request?
Employees generally have the right to request flexible working arrangements if they are:
- Parents who have responsibility for the care of a child of school age or younger;
- Carers (i.e. someone who cares for a person with a disability, medical condition, mental illness or elderly person);
- Employees with disabilities;
- 55 or older;
- Experiencing domestic violence, or caring for or supporting a member of their family or household who is experiencing domestic violence.
What types of flexible work are covered?
An eligible employee can request any kind of change to his or her working arrangements.
The law does not set out a comprehensive list, but it does provide examples.
These include changes in hours (e.g. different start or finish times), changes in work patterns (e.g. job-sharing or split shifts) and changes in location (e.g. working from home).
How does it work?
There are two key steps:
1. The employee must make the request in writing, detailing the flexible working arrangements sought and the reasons for seeking them.
2. The business must respond to the request in writing within 21 days, stating whether or not it will grant the request. If the business refuses, the response must include its reasons for refusal.
Does the business have to agree to the request?
An employer is legally obliged to consider any request made by an eligible employee, but the employer is not required to agree to the request.
However, employers must remember that a request can only be refused on ‘reasonable business grounds’.
Reasonable business grounds may exist when, for example:
- The change sought would be too costly;
- The change would negatively impact on other employees;
- The change would be impractical to implement;
- The change would negatively impact efficiency or productivity;
- The change would have a significant negative effect on customer service.
There is no definitive list of what constitutes reasonable business grounds. It is assessed on a case-by-case basis.
While the business is not obliged to agree to any request, a failure to consider a request and respond within the 21-day time period is a breach of the legislation.
At present, no penalties apply if the employer refuses a request on reasonable business grounds. In limited circumstances, an unhappy employee may be able to notify a dispute to the Fair Work Commission about the refusal.
Flexible work policies
Generally, employers that put in place flexible work policies make flexible arrangements available to most or all employees, not just those who have a legal right to make a request under the Fair Work Act 2009.
The flexibilities that can be offered in a workplace policy are sometimes set out in a list in the policy, but some businesses leave this open, allowing employees to propose whatever flexibilities work for them.
When policies are being drafted, it is important to note that the nature of a role might necessarily limit the flexibilities available. For example, it would be impractical for a receptionist to work from home.
Discrimination laws present another area of legal risk surrounding flexible working.
A business' refusal to provide flexible working arrangements can, in some cases, result in a claim for unlawful discrimination.
A common example is a female employee returning from a period of parental leave and asking to work part-time. Cases have shown that, in some circumstances, a refusal to accommodate that request could constitute gender discrimination.
To minimise the risk of an unlawful discrimination finding, the business needs to prove that the part-time arrangement is not workable.
This is a claim frequently made by employers, but which has on occasion failed to withstand scrutiny in a court or tribunal.
For employees with disabilities (which is a broad concept under Australian law), employers have additional duties: employers are required to make ‘reasonable adjustments’ to the role to accommodate the employee’s disability as far as possible.
Reasonable adjustments often involve some kind of job flexibility, such as modified hours, the ability to work from home (for example, where mobility is an issue) or additional time off for medical treatment.
A failure to provide reasonable adjustments amounts to disability discrimination.
Using annual leave flexibly
Business owners often ask us about reducing annual leave balances.
Employees are generally entitled to 10 days of personal/carer’s leave per year, which is cumulative from year to year (under the National Employment Standards in the Fair Work Act 2009).
Personal/carer’s leave covers sick leave and leave to care for a member of the employee’s immediate family or household.
If an employee exhausts their paid entitlement to personal/carer’s leave, the employer can (but is not obliged to) agree to let them use their paid annual leave entitlement instead so that they can continue to be paid.
Similarly, if an employee was taking unpaid leave of some other kind, the employer may allow them to use their paid annual leave (but again, is not obliged to do so).
This commonly happens when an employee takes unpaid parental leave and wants to be paid for a period of that leave, provided there is sufficient annual leave to draw from.
Allowing employees to draw on their annual leave in these circumstances may help reduce annual leave balances.
The possibilities are endless
While employers may be obligated to provide flexibility in some circumstances, there are no limits when it comes to the types of flexible working arrangements that can be requested or offered.
Employers need to keep an open mind and embrace the positives that workplace flexibilities are proven to provide.
Kerryn Tredwell is a partner at Hall & Wilcox.
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