Responding to Flexible Work Requests

It is increasingly common for working parents to request flexible working arrangements to accommodate their family responsibilities.

Flexible arrangements could include part time work, job share arrangements, working additional hours on some days to provide for shorter hours on other days, or home based work.

Under the Fair Work Act 2009, employees will have legal right to request such arrangements in certain circumstances.

The right only applies to:

• parents with children under school age; or
• parents of children under the age of 18 with a disability.

There are some other restrictions:

• full and part time employees must have completed at least 12 months continuous service; or
• casual employees must be “long term” casuals with a reasonable expectation of continuing employment.

What do you need to do if you receive a flexible work request?

If you receive a flexible work request you need to give the employee a written response to the request within 21 days.

Requests for flexible working arrangements because of a person’s family responsibilities should be considered carefully. Consider the impact on work volume, peak periods, and/or overtime on your business and other employees.

If the request is refused, you need to give reasons for the refusal and you can only refuse the request on “reasonable business grounds”.

It is important to have documented evidence that you have given genuine consideration to the employee’s request.

If you identify some issues that are likely to be problematic for the business in accommodating the request, it is not recommended that you dismiss the request outright. For the sake of due diligence and to assist you in arriving at a decision, document the reasons why it would be problematic to accommodate the request and carefully consider whether the issues identified are able or unable to be overcome.

Importantly, the Act does not require you to choose between granting the employee’s request in full or refusing the request. It is a good idea to discuss the request and try to reach a resolution acceptable to both parties. In this regard, have a think about what alternative flexibility could be made available (e.g. shifting start and finish times to accommodate child care arrangements).

What are reasonable business grounds?

This will depend on each business’s individual circumstances but some possible considerations include:

• the effect on the workplace of approving the request including the impact on efficiency, productivity and customer service;
• inability to organise work among existing staff;
• inability to recruit a replacement employee or the practicality of arrangements necessary to accommodate the request.
• the person’s circumstances, including the nature of their responsibilities as a parent or carer;
• the nature of the role that is on offer;
• the nature of the arrangements required to accommodate those responsibilities;

• the financial circumstances of the employer;
• the size and the nature of the workplace and the employer’s business;
• the effect on the workplace and the employer’s business of accommodating those responsibilities, including:
  • the financial impact of doing so;
  • the number of persons who would benefit from or be disadvantaged by doing so;
  • the impact on efficiency and productivity and, if applicable, on customer service of doing so, and
  • the consequences for the employer of making such accommodation; and
  • the consequences for the person of not making such accommodation.

Be proactive

It is recommended that you consider the possibility of employees requesting flexible working arrangements and how this might impact on your workplace. Accordingly, you should consider:

• implementing a flexible work policy;
• documenting an internal process for making and responding to a request and train managers in the process so you can be sure that the business satisfies the law’s requirements;
• identifying flexible work arrangements that may be requested;
• identifying the factors that managers should consider when responding to these requests;
• identifying options for responding to these requests. This might include trialling a flexible work arrangement for a set period as opposed to refusing a request outright;
• identifying additional factors that might be relevant if an employee’s request is granted. This might include the impact on other staff or OHS considerations if employees will be working from home.

For more information contact your Workplace Adviser on 1300 650 620.

_{DISCLAIMER – the above is intended to provide general information in summary form. The contents do not constitute specific advice and should not be relied upon as such. Formal specific advice should be sought by members with respect to particular matters before taking action.}