Employees with young or disabled children have a special right to request flexible working arrangements under Australian law.
Employers can only refuse the request on reasonable business grounds. In these cases, rather than refusing the request outright, they are encouraged to discuss working arrangements with their employees and, where possible, reach an agreement that balances both their needs.
Flexible working arrangements includes measures such as changes to start/finish times, working from home and/or job-sharing arrangements.
For example, a parent of a three-year-old child may request changing their working hours from full-time to 9.30am-4.30pm so they can drop-off and pick-up their child from childcare. Or the parent may request to work a 9 day fortnight.
Your employer is only required to consider your request if you are a parent and you are responsible for caring for a child that is under primary school age, or a child that is under 18 that has a disability. You must have completed at least 12 months of service with the employer.
Under the National Employment Standards, you must make your request in writing and your employer must respond in writing within 21 days. Your employer can refuse a flexible working arrangement request but only on ‘reasonable business grounds' and must provide reasons for their refusal.
Unfortunately there is no legislative definition of ‘reasonable business grounds' for refusing a request but it may include things such as the financial cost to the business of implementing the arrangements or the impact on customer service and other staff.
For example, a call centre business would have reasonable business grounds to refuse a request from an employee who is a customer service operator to work from home, due to the impracticality and cost of meeting such a request. However the employer would be encouraged to discuss other possible working arrangements with employee, such as reduced hours or working specific shifts.
At this stage ‘reasonable business grounds' has not yet been tested in the courts. The Fair Work Act 2009 empowers Fair Work Australia or some other person to deal with a dispute about whether an employer had reasonable business grounds for refusing a request. This generally only happens if the parties to the dispute have agreed in an employment contract, enterprise agreement or other written agreement for that to occur.
In addition, the Fair Work Act 2009 allows State and Territory laws to continue to apply to employees where they provide more beneficial entitlements than the NES in relation to flexible work arrangements. In Victoria, for example, provisions of the Equal Opportunity Act 1995 prohibit an unreasonable refusal to accommodate an employee's responsibilities as a parent or carer.
An employee may also have remedies under relevant discrimination legislation, including the discrimination provisions under the Fair Work Act 2009, if an employee considers they have been discriminated against by the employer‘s handling or refusal of their request.
APESMA members can call 1300 273 762 for advice.