Flexible Work Arrangements

Most Australian workers had to change their standard working arrangements during the COVID-19 pandemic. Working from home became the new normal for office workers across the country. For many, this was a hardship, but for some, working from home was a revelation in work-life balance. It is anticipated that working from home, and other flexible working arrangements (FWA) will continue to be common in the future. This article explains an employee’s right to access flexible work arrangements in Australia.

What are Flexible Work Arrangements?

FWAs allow employees to make work arrangements that better suit their lifestyle and commitments. The purpose is to reduce employee stress and increase overall job satisfaction. Flexible work arrangements can provide essential relief when an employee has incompatible work and family obligations. FWA can also assist employees with ongoing medical conditions or caregiving responsibilities who would otherwise have to resort to part-time or casual work arrangements.

Flexible work arrangements can amend working hours (changing the start and finish times), working patterns (job sharing or split shifts), and/or work location (working from home). Some employees refrain from using their entitlement to flexible work arrangements for fear that it could adversely affect their career. However, studies have shown that both employers and employees benefit from FWA, with greater job satisfaction, reduced workplace stress and absenteeism and increased productivity and employee retention.

The Right To Request Flexibility

Under the Fair Work Act 2009, eligible permanent employees who have worked for the same employer for at least a year have a protected right to request flexible working arrangements. Casual employees who have worked for the same employer for one year can also request flexible work arrangements if they have a reasonable expectation of continued employment. An employee must request flexible working arrangements in writing, specifying the nature of the change and the reason for the request.

An employer must make a reasonable effort to accommodate an FWA request if the employee is:

• A parent or guardian of a school-aged or younger child;
• A carer (according to the Carer Recognition Act 2010;
• Experiencing domestic or family violence;
• Providing care for immediate family or a member of their household who is the victim of family or domestic violence;
• Fifty-five or older; or
• Disabled.

For instance, an employee can request permission under the Fair Work Act to start working at 10 am instead of 9 am so that he has time to take his daughter to preschool before work. Similarly, a 58-year-old employee can ask for flexible work arrangements so that she can work a four-day week as a transition to retirement.

An employer must discuss the request with the employee to try and negotiate an agreement to change the employee’s working conditions. The parties must discuss the employee’s needs, the potential consequences if the parties cannot agree on alternative working arrangements, and any reasonable business grounds to refuse the request.

Can An Employer Refuse?

An employer can only refuse to grant a request for flexible work arrangements on reasonable business grounds. Reasonable grounds to refuse include:

• That the arrangements would be too costly;
• That it is not possible to change other employees’ working arrangements to accommodate the request;
• That it is impractical to change the working arrangements of other workers or hire new employees to accommodate the request; or
• That there would be a detrimental impact on customer service or loss of productivity.

All employers who receive a flexible work arrangement request under the Fair Work Act must reply within twenty-one days. If the employer refuses they must outline their reasons in a written response to the employee.

The Fair Work Commission recently examined an employer’s refusal to agree to flexible working arrangements in Phillips v Integrated Medical Solutions Group Pty Ltd [2019]. The employee worked as a medical receptionist but took unpaid leave to care for her mother. When her mother passed away, she took on responsibility for her young sister and requested flexible work arrangements to accommodate her new guardianship responsibilities. She requested that she start work at 10 am, leave at 2 pm and have several weeks off during the school holidays. Her employer refused the request on the grounds that the practice was busiest during opening and closing times. The employer stated that it would incur unreasonable cost to hire a casual worker to cover the worker’s absence, and they could not accommodate the proposed annual leave arrangements as it would disadvantage other employees. The employer did offer alternatives, such as working from 8:30 am to 2 pm or converting to casual employment. Also, the employer maintained that the employee could still return to her standard full-time employment. When the parties could not come to an agreement, the employer advised the employee that if they heard nothing further, they would consider that she voluntarily left their employment.

When the employee lodged an unfair dismissal application, her employer replied that they had reasonably considered her request for flexible working arrangements and proposed workable alternatives. The FWC held that the employer repeatedly and reasonably engaged in negotiation with the employee on this matter and that she could have returned to her substantive position at any time. Further, the FWC emphasised that while an employer is obligated to consider a request for flexible work arrangements, they can reasonably refuse.

Policy On Flexible Work Arrangements

An employer should develop a policy on flexible work arrangements to help both managers and employees. The policy should explain eligibility for flexibility, how an employee can make a request, and how the employer will consider and respond to the request. The policy should also outline how the company will monitor the flexible work arrangements to ensure it is satisfactory for the employee and the company. The policy should be applied in a fair and consistent manner to all eligible workers.

The team at Armstrong Legal can help if you have questions about your right to flexible work arrangements, or your responsibilities as an employer to consider employee requests. Please contact the team online or call 1300 038 223 today for specialist employment legal advice and representation.