Who can use this correspondence?
This correspondence can be used by all employers throughout Australia, except the following excluded employers:
- non-constitutional corporation employers in Western Australia;
- State public sector employers; and
- local government employers - except in Tasmania and Victoria.
Excluded employers may, however, wish to use this document to obtain guidance on responding to similar requests.
A parent returning to work after parental leave will often request to return to work in a part-time capacity, to enable them to care for their child. This is also known commonly as a request for flexible working arrangements. This is a complex and newly developing area of the law which, if not handled correctly, could lead to a number of legal claims including underpayment, breach of award/agreement, discrimination, adverse action, breach of contract, and unfair dismissal.
The commentary which follows is not intended to be comprehensive and does not address all the legal issues which should be considered and addressed in dealing with requests for flexible working arrangements. Employers in Victoria are also subject to additional obligations (see below).
Who is eligible to request flexible working arrangements?
An employee returning to work after a period of parental leave is eligible to request flexible working arrangements if:
- the employee is a parent of a child or has responsibility for the care of a child; or
- the request is for the purpose of assisting the employee to care for the child.
Employers in Victoria are also subject to additional obligations (see below).
The Fair Work Amendment Act 2013 (Cth) clarifies that an employee who is a parent and has responsibility for the care of a child or is returning to work after taking a period of parental leave may request to work part-time to assist in the care of the child.
The employer's response to the request
If the employee meets the eligibility requirements, then the employer is required to consider the request. An employer can only reject the request on ‘reasonable business grounds’.
Any request by an employee for flexible working arrangements must be submitted in writing. An employer is then required to provide a written reply within 21 days stating whether or not they grant the request.
If the request is refused, the employer must include details of the ‘reasonable business grounds’ on which the refusal was based in the letter to the employee. A request may only be refused on 'reasonable business grounds'.
As a result of the Fair Work Amendment Act 2013 (Cth) the Fair Work Act 2009 (Cth) now provides the following reasons that may form part of reasonable business grounds for the purposes of refusing a request to work a flexible working arrangement:
- the new working arrangement would be too costly for the employer;
- there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
- that it would be impractical to change the working arrangements of other employees, or recruit new employees to accommodate the new working arrangements requested by the employee;
- that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;
- that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.
It is important to note that the above list is not exhaustive and there may be other reasons a business has that could be taken to be reasonable business grounds in refusing a request for a flexible working arrangement.
If an employer receives a request from an employee for flexible working arrangements, the employer should give it genuine consideration. While the reasonableness of the business grounds itself is not reviewable, such a refusal might be used in a claim of unlawful discrimination. A well-considered, yet reasonably declined request for flexible working arrangements would assist in defending against a claim of unlawful discrimination.
Recording the grant of a request
If an employer decides to agree to the request for flexibility, it is advisable to record the details of the new working arrangements in writing and vary the contract. Employees who are covered by an industrial instrument (e.g. enterprise agreement, collective agreement or award) should also be asked to enter into an Individual Flexibility Agreement (available on this website) to vary the terms of the industrial instrument to ensure that the employer does not breach of any its terms as a result of the agreement to the flexibility request.
As an example, the employer may permit the employee to work part-time outside the normal span of hours permitted by the industrial instrument following their return to work from parental leave. In the absence of the Individual Flexibility Agreement, the employer would be required to pay the employee penalty rates for the hours performed outside of span, otherwise it is in breach of the industrial instrument and a court may impose a penalty for such a breach.
The letter to the employee indicates that any agreement by the employer to a flexibility request is conditional on the employee agreeing to sign a new contract of employment, and if applicable, an Individual Flexibility Agreement.
It is acceptable to also only agree to the flexibility request for a limited period. Appropriate contractual documents should reflect the agreement, its duration, and what happens at the expiration of the agreement. Recording the agreement in writing will help to avoid disputes.
The options contained in the response to the employee
This letter will assist employers in responding to a request from an eligible employee to return to work on a part-time basis following a period of parental leave. It offers employers the following options:
- to agree to the employee’s request;
- to refuse the request;
- to refuse the request, but suggest alternative working arrangements or a trial of working arrangements to further assess what accommodations could be made in order for the request to be workable. At the end of the trial period, the employer can then assess what alternative working arrangement(s) it can accommodate, and the employee can then submit a fresh request for flexible working arrangements;
- to hold a meeting with the employee to discuss the request. If an employer selects this option, the employer should be aware that it will still be required to advise the employee whether the request is granted or refused within 21 days of receiving the request. During the discussion period, the employer may reach an agreement with the employee for them to withdraw the request and submit a fresh request, which details the modifications the employer requires to be made to the request in order for the employer to accept it.
It is important to note that while requests for part-time work and flexible work arrangements must be genuinely considered and only considered on 'reasonable business grounds'. There is no automatic ‘right’ to part-time work or flexible work arrangements. This is a common misconception amongst employees returning to work from parental leave.
If you are unsure about whether you can establish 'reasonable business grounds' for refusing a request, you should seek specific legal advice.
Terminating the arrangements
Specific advice should be sought before an employer proposes to terminate any request for flexible working arrangements that was previously granted.
Employers in Victoria should seek additional advice, as further obligations apply in relation to the right to request flexible working arrangements. In particular, the Equal Opportunity Act 2010 (VIC) contains broader obligations on employers to accommodate such arrangements.
Under the Victorian legislation, employers in Victoria must not, in relation to the work arrangements of a contractor, an employee, or a person being offered employment, unreasonably refuse to accommodate the responsibilities which that person has as a parent or carer. The responsibilities as a carer are not merely limited to children who are under school age or children under 18 years old with a disability — they apply generally to any person who is wholly or substantially dependent on the contractor, employee, or prospective employee for ongoing care and attention.