How Flexible Are You?

Flexible Working Arrangements

The trend of flexible working arrangements has been growing exponentially as employers are seeing the benefits of morale, motivation and productivity in their employees. But did you know that under certain circumstances, you have the right to request flexible working arrangements!

With more attention than ever before drawn to the concept of “work-life balance”, many employees, particularly those with children and carer’s responsibilities or those looking to transition into retirement, may wish to seek more flexibility in their working arrangements than the traditional 9 am to 5 pm business hours. While workplaces can’t always accommodate these requests, they are required to carefully consider the requests.

The Fair Work Act 2009 (Cth) (the FWA) has contained a provision, in section 65, for an employee’s right to make a request for flexible working arrangements since 2010; but now these provisions have been included in recent changes to modern awards as well. From 1 December 2018, modern awards now include rules regarding employee requests for flexible working arrangements. For example, Clause 28A of the Clerks – Private Sector Award sets out in detail this requirement.

Employee’s requirements in making a request

In order to request flexible working arrangements, an employee must have been employed by their employer continuously for at least twelve months and:

- they are a parent of or have responsibility for the care of a child who is school aged or younger

- are a carer (under the Carer Recognition Act 2010)

- have a disability

- be 55 or over

- are experiencing family or domestic violence, or;

- provide care or support to a member of their household or immediate family who requires care and support because of family or domestic violence. (Fair Work website)

The employee’s request must be in writing, must explain the desired flexible work arrangement and the reason/s why the arrangement is required.

Employers requirements in deciding the outcome of a request

Employers are required to discuss the request with the employee and attempt to reach a mutual agreement. The employer may offer the employee alternative working arrangements which are flexible but would better suit the organisation.

The employer must make a decision and supply the decision to the employee in writing within 21 days of the employee’s request.

Awards contain detailed instruction for employer’s on how to respond to the request, both in the case of approval or refusal. Award clauses include a condition that the employer should have regard to the circumstances of the employee, as well as the consequences for the employee should the flexible working arrangement be refused.

Requests can only be refused on “reasonable business grounds.”

What are reasonable business grounds?

Reasonable business grounds may include cost, affect on other employees, loss of productivity or impairment to customer service. The effect on the business must be more than minor.

Real-World Examples

In Abulfazal Tawasoly v Alpha Flight Services Pty Ltd [2017] FWC 813, the Fair Work Commission found that Alpha Flight Services’ denial of Mr Tawasoly’s request for flexible working arrangements was based on reasonable business grounds. This was so because the times at which Mr Tawasoly was unable to work were during peak times for the business and finding appropriately skilled staff to cover this time was a challenge. Other employees were being disadvantaged by Mr Tawasoly’s inability to work the required hours and the business had already been incurring overtime to cover his absence.

Alpha Flight Services had attempted to assist in providing the flexible work arrangement by suggesting alternative days so that they could staff shifts adequately. Mr Tawasoly was unable to work at the alternatively suggested time and as such an arrangement could not be accommodated. The Commission found that the reasons given were considered reasonable business grounds.

An example of a flexible working arrangement that was upheld by the Commission was in The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria v Victoria Police [2018] FWC 5695 (14 September 2018). A senior detective wished to change his working hours from working 10 hour shifts over 4 days per week rather than 8 hours per day over 5 days.

The Commission found that the reasons given by the employer were not substantial enough to be considered reasonable business grounds for refusal. The Commission used an earlier case to clarify its position, ‘it is necessary for a decision maker “to point to some cost or adverse impact over and above the inevitable small adverse impacts associated with any material request that is sufficient to outweigh the employee’s personal considerations in the legitimate pursuit of a better work-life balance.”’ In this case, the evidence established that the restrictions on the workplace would only be minor in nature should the employee’s request be granted.

With the way that our workplaces are operating, changing at such a rapid pace to ensure high-quality work and happy employees, flexible workplace arrangements might be a suitable option in the quest for a better work-life balance.

Kayte Lewis

Managing Director

Principal Lawyer / Consultant at Voice Lawyers