Readers will recall that we (succinctly) addressed the issue of returning to work after childbirth in our last article and briefly mentioned the issue of flexible work arrangements which we examine in more detail in this article.

Who qualifies?

Employees can request flexible work arrangements in certain circumstances if they have been working at their place of employment for at least 12 months, or if they are a long term casual with reasonable expectations of ongoing employment on a regular basis.

Employees that may qualify for flexible work arrangements are:

• parents to children of school age or younger
• carers (as defined in s5 of the Carer Recognition Act 2010)
• individuals with a disability
• individuals 55 years or older
• individuals experiencing family violence
• individuals providing care and support to a member of their immediate family or household as a result of violence from the member's family

Making the request

The request must be in writing, with an explanation of the proposed changes and reasons for them. Suggestions might be made in the request which demonstrate an attempt to accommodate the needs of both the employer and the employee with the proposed arrangements. An invitation to discuss the request may also be proffered.

What's in it for the employer?

It will usually be helpful on making a request to consider how the proposed changes may benefit the business in the long run. Flexible work arrangements can increase staff retention or even enable clients to contact the employee outside of business hours. Perhaps the changes will also increase the employee's productivity and job satisfaction.

A discussion with the human resources department might help to engender ideas around how the changes can benefit both parties, taking into account the particular needs of the business and the employee's personal circumstances.

Can an employer refuse a request for flexible work arrangements?

The employer has 21 days within which to respond in writing to the request.

If refused, the response must include reasons for the refusal which are based on 'reasonable business grounds' – including, but not limited to, financial limitations, impracticality for the business, incapacity to make other arrangements and loss of efficiency or productivity.

It is illegal for an employer to take any adverse action against their employee because of a request for flexible work arrangements.

Can I challenge my employer’s refusal of a request for flexible work arrangements?

The Fair Work Act provides no mechanism by which employees can challenge the employer's refusal and no remedy is available where the refusal is not based on reasonable business grounds.

However, there are very limited circumstances in which employees can seek to challenge a refusal by making an application to the Fair Work Commission to deal with that dispute.

Circumstances may be different if an employee is employed pursuant to an enterprise agreement or enterprise award or has relevant rights under their employment agreement or a company policy.

Do I have other options?

Employees may also be able to seek remedies under other federal or state anti-discrimination legislation which prohibits unlawful discrimination (including on the ground of family or carer's responsibilities).

An employer's refusal of a request for flexible working arrangement in New South Wales may be considered unlawful discrimination where there are no reasonable operational reasons for the refusal and accommodating the request would not cause the employer unjustifiable hardship.

Is there anything else I should know?

In our experience, communication is the key. If you have a good working relationship with open and honest communication, then any issues around flexible working relationships can generally be worked through so that a mutually agreeable outcome is reached.

Questions/Assistance

If you have any questions or would like any assistance, please feel free to speak with or email a member of our Matthews Folbigg Workplace Solutions team on (02) 9635 7966 or info@matthewsfolbigg.com.au

DISCLAIMER: This article is provided to clients and readers for their general information and on a complimentary basis. It contains a brief summary only and should not be relied upon or used as definitive or complete statement of the relevant law.