Flexible working arrangements have been a source of discontent in some workplaces since the introduction of the Fair Work Act in 2009.

At issue have been the extension of flexibility for family reasons to fathers as well as mothers, and possible disruptions to the workplace caused by some workers having different hours from others.

In December 2018, The Fair Work Commission introduced a ‘model term’ (basically a template) that now applies when an employee makes a request for a change in working arrangements under the National Employment Standards (NES).

The new model term requires the employer, before responding to the request to:

  1. Discuss the request with the employee; and
  2. Genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances, having regard to:
    • the needs of the employee arising from their circumstances;
    • the consequences for the employee if changes in working arrangements are not made; and
    • any reasonable business grounds for refusing the request.

The term ‘business grounds’ is vital to the concept. Other grounds are not acceptable.

Reasonable business grounds

Reasonable business grounds for refusing a request for flexible working arrangements include but are not limited to:

  1. The new working arrangements requested by the employee would be too costly for the employer;
  2. There is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
  3. It would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
  4. The new working arrangements requested by the employee would be likely to result in significant loss of efficiency or productivity; and
  5. The new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.

Flexible working arrangements and the NES

The NES do not require the employer to choose between granting an employee’s request in full or refusing the request, rather employers and employees are encouraged to discuss their working arrangements and, where possible, reach an agreement that balances both their needs.

The NES requires that the employer give the requesting employee a written response within 21 days of receiving the request, so employers need to develop procedures to ensure these discussions are convened within the first 10 days after receiving the request so that documentation of flexible work agreements are developed within an acceptable time frame.

Penalties

This is a serious change in employment law and if you and your business are found to be in contravention of the Fair Work Act, you can face the following penalties:

  • Up to $12,600 for individuals; and/or
  • Up to $63,000 for companies.

Other important points

To manage arrangements effectively:

  1. Develop a clear policy on flexible working arrangements and keep it up to date.
  2. Make sure all staff are aware of the policy and their rights.
  3. Stay informed about your rights and responsibilities.
  4. Encourage all staff to talk to you about flexible arrangements – not just those who have a right to apply under the National Employment Standards.
  5. Carefully consider the needs of your business and how you can meet them while accommodating your employees’ needs for flexibility.
  6. Respond to all employee requests for a change in working arrangements in a timely manner (in writing within 21 days if your employee has a right to request under the Fair Work Act 2009).
  7. Discuss requests with your employees so you fully understand their situation.
  8. Consider alternatives if you can’t fully meet their request.

If you need advice on dealing with flexible working arrangements in your company, contact us at JFMLAW on 02 9331 0266 or email front.desk@jfmlaw.com.au

John Morrissey