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Flexible arrangements include, but are not limited to, part-time work, job share arrangements, working additional hours on some days to provide for shorter hours on other days, or home-based work.
There are some restrictions on when an employee may request flexible working arrangements including:
If you receive a flexible work request you need to give the employee a written response to the request within 21 days.
1 This includes all people who provide personal care, support and assistance to individuals who need support due to disability, a medical condition, including a terminal or chronic illness, mental illness or fragility due to age. However, it will not include support or assistance provided under a contract of service or a contract for the provision of services, in the course of doing voluntary work for a charitable, welfare or community organisation, or as part of the requirements of a course of education or training.
Before responding to a request you must discuss the request with the employee and genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances having regard to:
You can only refuse the request on ‘reasonable business grounds’. The Act sets out a non-exhaustive list of what are considered ‘reasonable business grounds’. These include:
If you cannot accommodate the employee’s request, the written response must:
If you and the employee reached an agreement on a change in working arrangements that differs from that initially requested by the employee, you must provide the employee with a written response to their request setting out the agreed change in working arrangements.
An employee can utilise dispute resolution procedures under modern awards should they believe you have not discussed the request, and responded to the request in the way required under the award.
Dispute resolution procedures encourage further workplace discussion, and eventual referral to the Fair Work Commission for intervention (mediation, conciliation, etc.) if required. Of note, there is no recourse under the Act where the employer's refusal is not based on reasonable business grounds.
However, when refusing a request you should be aware that an employee may have remedial options under anti-discrimination laws. For example, in NSW a person is discriminated against on the grounds of carer responsibilities, disability or age if the employee is:
Similar laws exist in other states/territories and Commonwealth laws specifically provide protection from discrimination on the basis of age and disability.
The best approach is to be proactive and consider the potential impact flexible working arrangement requests will have on your workplace and the likelihood of such requests occurring.
Accordingly, you should consider:
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