Flexible working arrangements flex some muscle!
From this week employees can access a new user-friendly enforcement mechanism to obtain flexibility at work.
New modern award provisions will require employers of award employees to discuss a request for flexibility with the employee and genuinely try to reach agreement. The change in working arrangements should reasonably accommodate the employee’s circumstances. If not agreed, the employer must provide written details of the reason for refusal and state what, if any, changes in working arrangements can be offered. Agreed changes must be recorded in writing.
Under the National Employment Standards, Australian employers are already required to respond to such requests in writing within 21 days. They must state whether the request is granted and, if not, provide reasons for refusal. But a breach of the employer’s obligation to only refuse requests for flexible working arrangements on reasonable business grounds is not classified as a provision that can result in a civil penalty.
Dissatisfied employees have been able to use the employer’s written refusal as the basis of a discrimination or adverse action claim, but these types of claims are hard work. Now employees can go to the Fair Work Commission for a quick, affordable resolution of their dispute about their employer’s refusal to accommodate their need for flexibility.
Further, breach of award obligations can result in a civil penalty. Now modern awards require a genuine effort on the part of employers to reach agreement with their employees. So employers not already motivated by the research that draws a connection between treating employees well and productivity may now be motivated to accommodate flexible working arrangements by the increased likelihood of a fine.
Remember, though, that not all employees are entitled to make a flexible work request. Minimum service periods apply. This right is available to parents and carers of children school age and younger, carers of people with disabilities, workers with disabilities, employees aged 55 or older, employees experiencing family violence and employees supporting a family or household member experiencing family violence.
Getting that written response to requests for flexibility right will be crucial for employers wanting to stay on the right side of the law. If you think you need to refuse a request for flexible working arrangements on reasonable business grounds, please contact Thea Birss for assistance by email (firstname.lastname@example.org) or mobile (0413 301 815).