How flexible are you required to be?

This edition’s guest columnist is Joanne Alilovic, Senior Associate of Jackson McDonald lawyers.

The world of work is always changing.  Compared to the traditional work model of the full time male worker working 38 hours Monday to Friday, the business world now accommodates a variety of flexible work arrangements.  These include increased numbers of casual and part time workers, people working from home, and people working non-traditional hours (such as fly in fly out arrangements).  These arrangements are not all at the employer’s initiative – many originate from a request from employees.

In mid February the Federal Government announced that it would extend the right to request flexible working arrangements.  Currently, employees may only request flexible arrangements to care for children under school age, or children under 18 if they have a disability.  The new right would extend to carers, workers with a disability, mature age workers and workers experiencing domestic violence.  The government also proposes an express right to request a return to work on a part time basis after taking unpaid parental leave.

So how does this impact on employers?

The new changes may mean a lot of additional requests from a variety of people.  However, just because an employee has a right to request a flexible work arrangement, doesn’t mean an employer has to grant the request.

What the employer does have to do however, is consider each written request received. It may only refuse the request on “reasonable business grounds”.  If the request is refused, the employer must provide written reasons within 21 days of receiving the request.

“Reasonable business grounds” are not defined in legislation.  However, the government is proposing to provide guidance on this in the planned amendments.

Neither the current legislation nor the proposed amendments give employees the right to seek a review by the Fair Work Commission of a refusal of a flexible working request.  So any decision an employer makes is final.  However, employers still need to ensure they provide the required written reasons for refusal as to failure to do so would be a breach of the Fair Work Act giving grounds for a claim against the employer.  Also, employers must ensure the reasons do not give grounds for any other legal claim (eg. discrimination claims).  This is particularly the case where a refusal to grant a request may lead to termination of an employee’s employment.

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