13 August 2014 Request for Flexible Working Arrangements

By Warwick Ryan, Partner and Ellen Davis, Solicitor

In Brief

When companies receive employee requests for flexible working arrangements, understanding if they can accommodate their employee's need for flexibility, whilst still maintaining their business and client interests can be a difficult balancing act.

In a business environment where there are competing interests between employers, employees and clients it's difficult to strike the right balance in order to preserve productivity and profitability, whilst still meeting the needs of your employees and clients. This very balancing act may arise where an employee requests flexible working arrangements in the workplace. Understanding how, when and if you can accommodate your employee's need for flexibility whilst still maintaining your business and client interests, is an important factor in the balancing act.

The National Employment Standards provide employees with a right to 'request' flexible working arrangements in regard to hours, patterns and locations of work. The request may be made in writing by an employee who has completed at least 12 months continuous service with the employer and is either a carer, has a disability, is over 55, is experiencing domestic violence or needs to care for someone who is. 

The right to request flexible working arrangements is just that - a right to request. It is not an entitlement to have flexible working practices provided when requested. While it is important to consider and discuss alternative arrangements with an employee, it is also acceptable for an employer to refuse the request based on the reasonable needs of their business.

Reasonable business grounds upon which an employer may refuse a request can include:

  • The cost of implementing the arrangements would be unreasonable;
  • The effect on other employees and their working arrangements; and
  • The arrangements would result in a significant loss of productivity.

In a case heard by the Equal Opportunities Tribunal in South Australia, it was decided that removing the flexible working arrangements put in place for an employee to commence work at 10am rather than 9am to care for her elderly farther was not an infringement of the employee's rights nor was it a case of unfavourable treatment or bullying. The Tribunal accepted that the employer had tried to accommodate the employee over a number of years but the arrangements had ultimately resulted in difficulty and increased stress and tension amongst the other staff.

Where a request for flexible working arrangements is made the employer must advise the employee of their decision in writing within 21 days of the request. The employer does not need to choose between accepting or rejecting the request put forward by the employee. Instead, the employer may choose to negotiate and discuss alternative arrangements, if any, that could be made to accommodate the employee and the business before making their decision.

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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