As flexible working becomes a reality for many businesses around the country, SMB owners should know their legal position in regard to employee requests for changes in work arrangements.
Flexible work arrangements are a work entitlement that assists employees to balance their work and family responsibilities with their employment. Flexibility is also prescribed in modern awards to enable employers and employees to negotiate and vary certain terms of the relevant award to meet the genuine needs of both the employee and the employer.
Flexibility under modern awards
Modern awards provide flexibility to allow an employer and an employee to agree to vary the application of certain terms of their employment concerning;
- Arrangements for when work is performed;
- Overtime rates;
- Penalty rates;
- Allowances; and
- Leave loading.
The variations must be agreed on without coercion or duress and must result in the employee being better off overall than they would have been if no individual flexibility agreement had been agreed to.
For example, the modern General Retail Industry Award 2010 provides for award flexibility under clause 7.
Parents and carers
Parents caring for under-school age or under 18-year-old children with a disability have a right to request flexible working arrangements
An employee who is a parent, or has the responsibility for the care of an under school age child or disabled child under 18, may under the National Employment Standards (NES) ask to change their working arrangements for the purpose of caring for the child. The types of changes in flexible working arrangements may include the employee’s hours, work patterns and location of work.
The NES prescribes that the employee needs to meet a minimum length of service before making an application for flexible work arrangements.
A full or part time employee is not entitled to ask for flexible work arrangements unless they have completed at least 12 months of continuous service with the employer immediately before making the request.
A casual employee must be engaged by the employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months immediately before making the request, and have a reasonable expectation this regular employment continuing.
What is the process?
The employee is to make the request in writing and set out details of the change sought and reasons for the change. The employer must give the employee a written response granting or refusing the request within 21 days. The employer may refuse the request only on reasonable business grounds and the written response must include their reasons for refusal. Employers must ensure their written response does not include any unlawful reasons.
Reasonable grounds for refusal
If refusing an employee’s application for flexible work arrangements, an employer may be required to support their argument. They should take the time to consider all the relevant factors before making a decision to approve or reject the request.
Potential reasons for refusing an application for flexible working arrangement include:
- The effect on the workplace and the employer’s business, including the financial impact of approving the request;
- The inability of the employer to reorganise the workload among existing staff;
- Lack of adequate replacement of staff; and
- The practicality of arrangements required to accommodate the request.