Certain employee categories have a legal right to request flexible working arrangements from their employer, and if you’re the employer, you have a responsibility to consider requests. Flexible working arrangements can be mutually beneficial for both employers and employees. As an employer, you’ll want to understand how flexible working arrangements work, and be clear about your obligations and duties.
The right to make a request for flexible work arrangements is established in the National Employment Standards (NES). The NES applies to any employee covered by the national workplace relations system. Employers are obligated to consider these requests and refuse them only on reasonable business grounds.
Note that if your state or territory has laws widening the entitlements for employees and flexible work, those broader laws will also apply. For example, Victoria has rules within the Equal Opportunity Act of 1995 preventing employers from unreasonably refusing to accommodate a staff member’s parental or carer responsibilities.
Not every employee can make a request for flexible working practices. You have to satisfy certain conditions. Under the NES, any employee who has worked for the same employer for 12 continuous months or more is eligible to ask for flexible working arrangements if they also satisfy one of the following conditions.
Note that casual employees are also eligible if they’ve worked with the employer regularly and systematically for at least 12 continuous months. However, employees should have a reasonable expectation of continuing this work on a regular and systematic basis.
So, what do flexible working arrangements involve? Flexible work can include anything from coming in an hour later to working several days a week from home. Flexible work can involve changes to the hours of work, patterns of work, and locations of work. Changes to patterns of work might involve flexible work weeks such as working longer hours on some days to reduce the days worked per week. These compressed work schedules are a common type of flexible working arrangement.
Examples include changes to start and finish times, or job sharing and split shifts. Some employees might ask for a graduated return to work after, for example, parental leave. Your employee might make a request to start one hour later so she can take her child to school or to care for her child. Another employee who’s 55 or older might make a request to finish work several hours earlier on Thursdays to do volunteer work or for personal reasons.
Employees typically request their flexible working arrangements on an individual basis. This is known technically as an individual flexibility arrangement. The request must be made in writing and it should outline the changes the employee wants. Reasons for the request should be included, whether it’s to provide care for a child or something else.
When you agree to a request, you’ll still need to provide all relevant entitlements under modern awards or enterprise agreements. An example is if your employee asks to start their shift earlier so they can work four days instead of five. You’ll still need to pay any penalty rates applicable for the earlier hours of work.
Employers must reply to the request in writing, within 21 days. If you’re going to refuse a request, it needs to be on reasonable business grounds. Your reasons for refusal should be included in the letter.
Note you as the employer can refuse (on reasonable business grounds), agree to, or negotiate a request. This means once you’ve received a request and you can’t fully accommodate it due to business reasons, you could have a discussion with the employee about coming up with a compromise for meeting both business and employee requirements.
A strict definition of reasonable business grounds doesn’t exist. However, reasonable business grounds can include arrangements being too expensive to accommodate. It can include other employees’ working arrangements impeding you from accommodating the request. Impracticality of changing other staff’s work arrangements can also be a reasonable reason to refuse.
If you need to hire new employees to accept the request, this can also be reasonable grounds for refusal. It’s also reasonable to refuse if satisfying the request is likely to lead to a major loss of productivity or have a major negative impact on customer service. Operational and occupational health and safety reasons can also be reasonable business grounds for refusal.
If you have to refuse a request, it’s good practice to meet with the employee in person and explain your reasons. Rather than only receiving a written notification, your employee will understand you’ve carefully considered their request.
As an employer, you’re not required to agree to a request. If a dispute arises, employees could take the matter to the Fair Work Commission. State or territory laws could have relevant provisions. If the employee thinks they’ve been discriminated against, they could lodge a complaint with the relevant human rights commission under anti-discrimination laws. In these anti-discrimination cases, employers could be ordered to act to avoid further contravention and asked to pay compensation. If you have doubts about a refusal, get legal advice.
So, why should you as an employer accommodate flexible working arrangements or flexible working practices? Flexible working arrangements can turn out to be win-win situations for both your business and your employees.
Keep in mind challenges to flexible work arrangements do exist. One major challenge is not being able to call spontaneous meetings with employees. As an employer, you’ll likely need to schedule meetings in advance and set up the right software for remote meetings.
Managing performance fairly is another possible challenge. Benchmarking, regular check-ins via the internet, and frequent feedback are possible ways to overcome this. Other challenges include access to development and promotions, and building a coherent workplace culture for all employees.
Being aware of these potential challenges can enable you to become more effective at managing your flexible work arrangements.
Flexible working arrangements can be a win for your business and your employees. However, they’ll require a shift in your management approach and a strong focus on communication. These best practice tips will help your business fully leverage flexible working arrangements.
Flexible working arrangements such as working from home are becoming more common in Australia. As an employee, you could consider flexible work as an opportunity to boost workplace culture and reward employees. As long as you understand your obligations and duties, you can implement best-practice-level flexible work arrangements that are ultimately beneficial to your bottom line.
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