Flexibility in the workplace can often be a vexed issue for employees and employers. Who is entitled to request flexible hours? Can an employer reject the request? Are employers taking these requests seriously enough?
Latest research findings seem to point to a real lack understanding of employees’ needs by the businesses and organisations that employ them.
The newly released Oxford Economics Workforce 2020 report, which surveyed more than 5500 employees and executives across 27 countries, found that a key theme in Australia is that nearly half of all employees would like flexible working conditions. (Next month we will take a more detailed look at this fascinating report.)
But, in Australia, this is only offered in less than a quarter of all businesses.
The report also found that Australian employees demand more work/life balance in their day-to-day employment – with about 50% of workers declaring it just as important as job satisfaction (compared to about 30% globally).
Examples of flexible work arrangements might include changes in hours of work (e.g. starting later or finishing earlier); changes in patterns of work (e.g. having a longer lunchbreak or job sharing); and changes in location of work (e.g. working from home two days out of five).
The National Employment Standards (NES) in the Fair Work Act 2009 provide SOME employees with a right to request a change in working arrangements if:
- the employee is a carer (within the meaning of the Carer Recognition Act 2010)
- the employee has a disability
- the employee is aged 55 years or older
- the employee is the parent of, or has responsibility for, the care of a child school age or under (parents returning to work after taking leave in relation to the birth or adoption of a child can request to return to work part-time to assist them to care for the child)
- if the employee is experiencing violence from a member of their family
- if the employee provides care or support to a member of the their immediate family, or a member of their household, who requires care or support because they are experiencing violence from the member’s family.
An employee can make a request if they have completed at least 12 months of continuous service with the employer before making the request, or if they are a long-term casual employee with a reasonable expectation that their job will continue.
The request must be made in writing, setting out the details of the change and the reasons it is being sought.
The employer must provide a written response to the request within 21 days, stating whether the request is approved or refused.
They can only refuse a request on “reasonable business grounds” under s65(5) of the Act and must provide reasons for the refusal.
Reasonable business grounds can include the following:
- that the new working arrangements requested by the employee would be too costly for the employer
- that there is no capacity to change the working arrangements of other employees to accommodate the requested new working arrangements
- that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements
- that the new working arrangements would be likely to result in a significant loss in efficiency or productivity
- that the new working arrangements would be likely to have a significant negative impact on customer service.
Some examples of discrimination:
- a change in roster has been implemented that requires all employees to work on a rotating shift. This may indirectly discriminate against those employees who cannot work afternoon or evening shifts as they are the sole carer of an older parent, a disabled spouse or young children.
- an employee has suffered a back injury outside of the workplace and whilst they have a medical clearance to return to work for reduced hours, the employer is insisting a return to work can only occur when the employee is able to resume full-time hours.
- an employee has taken 12 months maternity leave and is seeking a return to work on a part-time basis. The employer insists that the complainant return full-time or resign from their employment.
Some examples of eligibility for flexible working arrangements:
- John wants to start work at 10am instead of 9am so he can take his son who has a disability to school in the morning and get him settled for the day. He can request flexible working arrangements as he is a carer.
- Similarly, if John was caring for his spouse or mother, for example, he would also be entitled to request to either start work later, or leave earlier, if he could show why that was necessary to help care for them.
- Mary has asked her employer if she can work from home because her disability makes it hard for her to travel to the office. She can request flexible working arrangements because her request relates to her disability.
- Similarly, if Mary was caring for a child or spouse with disability, or an aged parent, she would be entitled to request flexible work arrangement and the employer would have to take the request seriously. They could only refuse the request by providing proof that there were “reasonable business grounds” why granting the request would be detrimental to the business.
To read a full transcript of the National Employment Standards (NES) in the Fair Work Act 2009 visit: https://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s65.html
The infographic above details the rights and obligations of both parties regarding flexibility in the workplace. Click here to see an expanded view.
It comes from the website of Workplace Info, a publication from Australian Business Consulting and Solutions. Workplace Info is an organisation that offers plenty of help for both employers and employees on this challenging topic. Visit: www.workplaceinfo.com.au
Source: Working Carers Gateway
First published: 22nd September 2014