Following the repealing of the Howard Government's Workchoices legislation, the then Workplace Relations minister Julia Gillard presented to parliament the Fair Work Act which came into operation from 1 January 2009. Along with broad changes to unfair dismissal rights and collective bargaining, the Fair Work Act also introduced a right for all employees with children under school age to request flexible work arrangements. While these reforms were considered of wide-ranging benefit, the reality, as highlighted in a recent survey, is that very few employees know of their right to request flexible work arrangements.
The reason that flexible workplace arrangements are not as common as they might be are varied. One of the suspected main reasons is that there is uncertainty about what constitutes workplace flexibility and ever further uncertainty about what steps managers must take to accommodate a request for flexibility. In this article we will firstly look at how an employee should make a request for flexible work arrangements and secondly, how managers can respond to such requests. In looking at these two issues the article will answer the broader questions of what constitutes workplace flexibility and how a manager and workplace can accommodate an employee's request.
Requesting flexible working arrangements
The right to request flexible working arrangements is contained in section 65 of the Fair Work Act. The right is extended to employees who are parents or have the responsibility for the care of a child under school age or a child under 18 who has a disability. Full-time and part-time employees must have been employed for at least 12 months before they are entitled to make a request, while casual employees must be long-term casuals with a reasonable expectation of continuing employment with the employer. Employees who do not have the requisite period of service are not prevented from requesting flexible work arrangements, however such a request would not be subject to the procedures in section 65.
With regards to the formal requirements of any request, it must:
- be in writing;
- set out details of the change sought; and
- set out the details of the reasons for the change.
Set out the details of the change sought
When discussing flexible work arrangements, we understand these arrangements as being about when people work, where they work and how they work. Employees may seek to change one or all of these work arrangements in their request for flexibility. Some examples of flexible work arrangements include:
- moving from full-time to part-time work, including later start times and earlier finishing times or job sharing;
- moving or splitting work shifts;
- accumulating a monthly rostered day off or a 9-day fortnight cycle;
- purchasing additional annual leave;
- approving leave without pay;
- working from home or another remote location;
- working from an alternate work site;
- moving to an alternate role that better accommodates the responsibilities of a carer;
- facilitating more technology-enabled options such as video-conferencing, on-line discussion and other forms of on-line collaboration that would minimise travel.
In making the request it is important to remember that the right to request contained in section 65 is only a right to make the request and have it considered by the employer, it is not an absolute right to be granted the flexibility sought. As such, it would be beneficial to both the employee and employer if the employee was able to include in the request the details of how the employer may facilitate the new work arrangement. This may involve the employee first discussing the matter informally with the relevant manager or supervisor.
Set out the reasons for the change
Workplace flexibility, by its nature, requires flexibility from both the employer and the employee. While there is no doubt that workplace flexibility is ultimately good for the bottom line, there may be a tension between an employer's pursuit of business objectives and an employee's pursuit for work/life balance. As with any tension, open and clear discussion can help alleviate concerns and lead to mutually beneficial outcomes. As such, it is important for employees to be as open as possible about their reasons for requesting change. This may allow for an open discussion about a form of flexible work arrangement that the employee may not have previously considered. An illustrative example of this was provided in the explanatory memorandum to section 65:
Michael would like to start work at 10am, four days a week, to enable him to take his three year old son to pre-school. He submits a written request to his employer setting out the reasons for requesting the change in hours. His employer considers the request but is unable to agree to the changes, as they would mean that Michael misses an important nationwide teleconference each morning.
However, instead of simply refusing the request, Michael's employer discusses the situation with him. They agree to an arrangement where Michael will start work at 10am four days a week and participate in the teleconference by phone hook-up before he leaves home, while attending in person for the most important weekly agenda-setting meeting.
Responding to a request for flexible working arrangements
Once an employee has submitted a written request for flexible work arrangements in accordance with section 65, the employer must give the employee a written response to the request within 21 days, stating whether the employer grants or refuses the request. If the employer refuses the request the written response must include details of the reasons for the refusal.
Granting a request
In granting a request there are a few simple steps that managers should follow and, if they don't, employees should ask for. These are:
be clear on what is being agreed to. If the change is from full-time to part-time, then outline what the new hours of work are to be. If the change is a change in how work is to be performed, such as moving from a role that involves travel to a role that is more office based, make sure that there are clearly defined expectations for the position and clear position descriptions.
discuss how long the arrangement is to stay in place. The requirements of both the employer and employee may change between when the request is made and when the employee's child attends school. It may be useful to include a requirement that the employer and employee meet each 6 months to discuss how the arrangement is working.
communicate effectively with all stakeholders who are affected by the change. This communication should come from management rather than the employees themselves. If an employee is starting later, for example, then all employees should be aware of this so they can adjust. Likewise, all assessment criteria, such as KPIs, need to be adjusted to accommodate the change.
Refusing a request
As discussed the right afforded to an employee under section 65 is the right to request flexibility – it is not an automatic right to unilaterally change the employment relationship between the employee and the employer. An employer may refuse the request on reasonable business grounds. An employee does not have a right under section 65 to appeal an employer's decision to refuse a request.
The Fair Work Act does not identify what may, or may not, comprise reasonable business grounds for the refusal of a request. Rather, the reasonableness of the grounds is to be assessed in the circumstances that apply when the request is made. Reasonable business grounds may include, for example:
the effect on the workplace and the employer's business of approving the request, including the financial impact of doing so and the impact on efficiency, productivity and customer service;
the inability to organise work among existing staff; and
the inability to recruit a replacement employee or the practicality or otherwise of the arrangements that may need to be put in place to accommodate the employee's request.
It is a requirement of section 65 that the employer give written reasons for refusing a request. These written reasons should clearly explain the reasonable business grounds relied upon and how the request for flexible work arrangements cannot reasonably be accommodated. If possible, employers should schedule a meeting with the employee whose request is being refused to discuss the reasons for the refusal and any other possible options.
The right to request flexible work arrangements is a right by an employee to commence a collaborative discussion with his or her employer, rather than an absolute right to force a change to the employment contract between the parties. Understanding the right from this perspective will assist in making the process more open and constructive. Employers and employees must recognise that they both have competing needs and work together to best manage those needs.
NOTE: THIS ARTICLE IS ACCURATE AS AT SEPTEMBER 2013 AND IS IN LINE WITH THE LEGISLATION THAT EXISTED AT THAT TIME. YOU SHOULD CONTACT OUR WORKPLACE ADVICE AND SUPPORT LINE ON 1300 273 762 TO ENSURE THE RULES HAVE NOT CHANGED.
About the Author
Joseph Kelly is the Principal of Kelly Workplace Lawyers. He specialises in commercial litigation and workplace law having advised industry bodies, unions, employers and government on broadranging employment-related matters. He also runs a range of training and information seminars for legal practitioners.
Kelly Workplace Lawyers: http://www.kwlawyers.com.au/
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