Flexible Working Arrangements: Do I Have to Implement Them?
Not sure what your obligations are when it comes to flexible working arrangements? Read this article to find out what the legal requirements are.
Flexible working arrangements help employees fulfil their responsibilities outside of work. They can request to change their hours, location and patterns of work. Employees asking for these changes include parents, carers or those experiencing domestic violence. You can help them to create a way of working that suits them, while still meeting the demands of your business. However, allowing these changes isn’t compulsory. Read about your legal obligations when it comes to flexible working arrangements in this article.
Right to request
In Australia, The Fair Work Act (2009) Cth gives certain employees a legal right to ask if they can make changes to their working arrangements. Beyond this, employment contracts often have a clause which clarifies whether flexibility in the employee’s work schedule is able to be negotiated.
Who can request flexible working arrangements?
Firstly, there are certain characteristics that employees have to meet in order to be able to ask you for flexible working arrangements.
They have to:
- Have been working for you for at least 12 months (unless they’re employed on a casual basis)
- If they’re employed casually, be ‘a long term casual’ (have worked with you for 12 months or more) and they intend to work keep working with you on a regular basis.
Additionally, your employee has to fit into one of the following groups:
- Be a parent, or have responsibility for the care of a child who is of school age or younger
- Be a carer (within the meaning of the Carer Recognition Act 2010 (Cth)
- Have a disability
- Be 55 or older
- Be experiencing violence from a member of their family
- Provide care or support to a member of their immediate family or household who needs care due to experiencing domestic violence
What changes can employees request?
Your employee can request a variety of changes to their working arrangements. These include splitting shifts or job sharing, changes to when they start or finish work, or changes of where they work.
For instance, an employee might request to work from home 2 days a week in order to save commute time and pick up their child from school. Or alternatively they might request to share the tasks of their job with someone else in a 50:50 manner. This might be so they can fulfil carer duties. Employees who are parents, or parents returning from adoption or parental leave are allowed to request part-time work. So you might be approached about this too.
How do they request these changes?
An employee must give reasons for the changes, and outline what changes they are requesting. They have to do this in writing.
Do I have to make these changes?
The short answer is no. You don’t have to grant your employee the changes if you can provide a ‘reasonable business ground’.
Here are some examples of ‘reasonable business grounds’:
- The changes would be too costly for your business
- You don’t have the capacity to change other employee’s working arrangements to accommodate for the single employees request
- It’s impractical for you to shift other employees working arrangements, or hire new staff to accommodate for the single employee’s request
- Your business will face a loss in efficiency or productivity
- There would be a negative impact on customer service.
If any of the above apply to you, or a similar reason, then you have a right to refuse the request. To do so, give your employee a response within 21 days in writing and give the reason for refusal.
Additionally, if you employee is covered by an award, you have to first discuss their request with them. You should take into account their needs and share any potential consequences to your business. Further, you have to check if there are special requirements to include in your written response based on their award.
Alternative to refusal
An alternative to outright refusal is to discuss the situation with your employee to find a middle ground. This can still give them the opportunity to commit to responsibilities outside of work and not impact on your business negatively. Moreover, thinking about the kind of business you want to build, and the culture you want to create can help you figure out how to maneuver these negotiations. Finally, If you’re unsure as to whether you have to grant an employee’s request for flexible working arrangements, it is worth consulting with an employment lawyer.
Parissa is a recent Bachelor of Laws/Bachelor of Arts graduate from the Australian National University. She is completing her Practical Legal Training at Lawpath. Her interests are legal technology, employment law and the accessibility of legal services.