As the COVID-19 pandemic ensues and employers have been compelled to experience “working from home” arrangements, we thought it might be timely and relevant for employers to understand what is required in relation to flexible working conditions, when things return to “business as usual”.
The usual requests for flexible work arrangements include the hours worked, patterns of work and locations of work.
Fair Work Act
All employees, whether employed pursuant to an employment contract or a Modern Award, are covered by the Fair Work Act.
The Fair Work Act provides that after 12 months of employment with an employer, an employee can make a written request for flexible working arrangement if the employee:
- is 55 years or over;
- is a carer;
- has a disability;
- is experiencing domestic violence or supporting a family or household member who is experiencing family or domestic violence; or
- is a parent or has caring responsibilities for a child of school age or younger.
This includes a casual employee who has been working regularly and systematically with the employer for at least 12 months and there is a reasonable explanation of continuing work with the employer on a regular and systematic basis.
If you receive notification from an employee regarding flexible working arrangements, you must consider the request and respond to your employee within 21 days.
As an employer, you can only refuse a request for flexible work arrangements on “reasonable business grounds”. Reasonable business grounds can include:
- the requested arrangements are too costly for your business;
- your other employee’s working arrangements cannot be changed to accommodate the request;
- it is impractical to change other employee’s working arrangements or employ new employees to accommodate the request; and
- the request would result in a significant loss of productivity or have a significant negative impact on customer service for your business.
Modern Awards
If your employee is employed pursuant to an Award, as opposed to an employment contract, you should check the Award Conditions to determine whether it contains any further obligations for you in relation to flexible working arrangement requests.
If the Award Conditions do contain further obligations for the employer, these further obligations require you to actively consult and discuss, rather than just consider, the employee’s request.
Employment Contract
If your employee is employed pursuant to an employment contract, as opposed to a Modern Award, you should check the terms of the employment contract to determine whether it contains any further obligations for you in relation to flexible working arrangement requests and ensure that you observe those further requirements.
Recommendation
Given that employers have had “working from home” arrangements imposed upon them as part of the COVID-19 restrictions, it may be beneficial to record:
- which flexible work arrangements have worked for your business;
- which flexible work arrangements have not worked for your business;
- the overall emotional/mental health effect that has been experienced by your employees as a result of having to work from home;
- any measurable cost impacts that flexible work arrangements have had for your business; and
- any measurable loss of productivity or negative impact that flexible work arrangements have had for your business.
These records may be a useful guide for you, if required to consider a request for flexible work arrangements in the future.
Kim Packer
LLB LLM Principal
This information is intended as general information only and is not intended to be legal advice for you. J + K Law make no representations regarding the suitability or accuracy of this information for you or your business. You should seek legal advice before making any decisions regarding your business.
