The Fair Work Act National Employment Standards (NES) form the foundations of employment legal obligations in Australia. The NES apply to all employees regardless of income and cannot be contracted out of. Employees have powerful rights to make workplace flexibility requests which employers should be familiar with. These now include the ability of the Fair Work Commission (FWC) to arbitrate disputes. Employees and employers should be wary of informal arrangements sitting outside this legal framework. The NES provide that certain employees can request a change in working arrangements if they require flexibility because they:
- are pregnant;
- are the parent, or have responsibility for the care, of a child who is of school age or younger;
- are a carer (as defined by legislation);
- have a disability;
- are 55 or older;
- are experiencing family and domestic violence;
- provide care or support to a member of their immediate family or household who requires care or support because they are experiencing family and domestic violence.
If an employee is the parent of or has responsibility for the care of a child and is returning to work after taking parental or adoption leave, the employee may request to return to work on a part-time basis to help them care for the child. Possible types of flexible working arrangements may include a temporary reduction in hours, non-standard start or finish times, working from home, working split shifts or job sharing arrangements. Full time and part time employees must have completed at least 12 months continuous service with their employer before making a request. Casual employees must be a long term casual employee (i.e. with at least 12 months service) and have a reasonable expectation of continuing systematic and regular employment.
The NES prescribe detailed requirements for employees and particularly employers. Firstly, requests must be in writing and set out the details of the change sought and the reasons. Secondly, the employer must give a written response within 21 days with their decision on the request and either agree to the request as made, agree to a varied request after discussion with the employee or refuse the request. However, an employer can only refuse a request if:
- they have discussed the request with the employee;
- they have genuinely tried to reach agreement with the employee to accommodate their circumstances;
- they have had regard to the consequences for the employee of the refusal; and
- there are reasonable business grounds for the refusal.
The Fair Work Act contains an inclusive list of what might be reasonable business grounds including cost, capacity to change the working arrangements of other employees, practicability of changing the working arrangements of others or recruiting new employees, significant loss of efficiency/productivity and significant negative impact on customer service. The specific circumstances of the employer including its nature and size are also relevant matters. Any refusal must include details of the reasons for refusal and how those grounds apply to the request and either set out the changes the employer would be willing to make or say there are no such changes as well as next steps the employee can take. If an employer doesn’t agree to the request that is made, discussions should be had between the employer and employee to see whether any compromise arrangement can be reached. If there is a change, then both parties should be clear about how long that change will operate for and this should be in writing. If the change is to be permanent, then the employment contract should be changed by agreement.
Thirdly, where the employer has refused the request, or not responded within 21 days, employees should lodge an internal complaint with their employer if possible as a first step. If this is not practicable or not successful, then a dispute can be referred to the FWC. The FWC has the power to conciliate or mediate the dispute and can determine the dispute if necessary. This may include:
- ordering employers to take further steps if they have not responded or not responded adequately to the request;
- ordering employers to grant the request or make specified changes to the employee’s working arrangements if there is no reasonable prospect of the dispute being otherwise resolved;
- confirming the employer’s refusal on reasonable business grounds.
The ability to raise a dispute relates not only to the process but also the employer’s decision and failure to follow the FWC’s order may result in penalties being imposed. Legal representation is only with permission of the FWC. If a state or territory law provides an employee with a better entitlement to flexible working arrangements, that law will continue to apply so it is wise to check your local entitlements. It is important that employers comply with these legal processes and actively engage in the process and consideration of requests. The ability of the FWC to arbitrate the merits of requests is a powerful new weapon for employees – eg, see Kent Aoyama v FLSA Holdings Pty Ltd. However, it should not be assumed that the FWC will always rule in the employee’s favour – eg, see Elizabeth Naden v Catholic Schools Broken Bay Limited.
Please contact us if you would like any further information or help. The Fair Work Ombudsman also has online resources.