Provision
Section 65 of the Fair Work (FW) Act provides that an eligible employee has a right to request of their employer access to a flexible work arrangement.  While such arrangements are not defined formally in the FW Act, examples are included in the “note” to the section, namely changes in work hours, patterns of work and location.
Who is eligible?
The National Employment Standards are minimum terms and conditions that apply to all employees.  Under section 65(1) employees who are parents of (or care for) children under-school age, or a child under 18 who has a disability, may request a “change in working arrangements”.
The provision applies to both permanent and casual employees.  In particular an employee must have completed 12 months continuous service before making this request, or if the employee is employed on a casual basis, the employee must be a long term casual and have an expectation of continued employment.
What does the provision require?
The request: The employee must make a request in writing demonstrating: (i) the reason for the change (i.e. how the requested change will assist the employee to care for their child); and (ii) the nature of the change.
The response: The employer must respond in writing within 21 days of the request.  The response must identify whether the request is granted or refused, and if refused the response must detail the reasons why.  These reasons must demonstrate that the refusal was made on “reasonable business grounds”.
What are reasonable business grounds?
The Standard does not define ‘reasonable business grounds’, however  ‘reasonable’ grounds to refuse a flexible work request may include:

 
 
  Costs
  Inability to staff the change
  Detrimental impact on quality or performance
  Too little work when employee proposes to work / too much when they will be absent
  Planned structural changes
 
 

An employer must provide evidence that it has taken conclusive steps to investigate the flexible work request or other alternative options and may not refuse the request on one ground/factor alone, such as ‘costs’.
Enforcement
The FW Act provides that all employers must comply with the National Employment Standards, including the provision that an employer provide reasons for accepting or refusing to grant a request for flexibility.  
Lessons learnt from the UK ‘right to request’ flexibility, read more

Ask about mums@work Flexible Work Proposal Toolkit - a guide for employees and managers to plan, negotiate and implement a flexible work arrangement on 02 9967 8377 or email info@mumsatwork.com.au

 
 

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  Simple and convenient business case Toolkit for managers and employees to openly plan, negotiate and implement a flexible work arrangement.

 
 
Designed specifically to support:
expectant parents
employees on parental leave
working parents