26 August 2010 The right to request flexible working arrangements following a period of parental leave

By Warwick Ryan, Partner

Employers should be aware that employees have the right to request a change in working arrangements to assist the employee in caring for a child. Such a request is often made while an employee is on parental leave and is often a request to return to work in a part time capacity. The employer may refuse such a request on reasonable business grounds.

The “right to request” (as it is called) is enshrined in the National Employment Standards contained in the new Fair Work Act. It is available to employees who are parents and who have been employed for over 12 months. It may be made in respect of a child:

  • under school age; or
  • who is under 18 and has a disability.

The request must be in writing and must set out the details for the change sought and the reasons for the change.

Long term casuals also have the right to request such arrangements.

What the employer must do if it receives a request

Within 21 days the employer must give the employee a written response to the request stating whether the employee grants or refuses the request.

If the employer decides to refuse the request, the written response must include details of the reasons for the refusal.

Employers should consider requests on a case by case basis. Fundamental to the Employer’s consideration will be what exactly the legislation means by “a change in working arrangements” and also what justifies a refusal on “reasonable business grounds”.

What is meant by “a change in working arrangements”?

The explanatory memorandum to the Fair Work Act states that examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.

Accordingly there is an argument that a change in working arrangements does not extend to the employee changing from a full time position to a part time position.

What is meant by “reasonable business grounds”?

The explanatory memorandum to the Fair Work Act states that the reasonableness of the grounds is a matter to be assessed in the circumstances that apply at the time the request is made. Reasons for refusal may include:

  • The effect on the workplace and the employer’s business 
  • The inability to organise work among existing staff
  • The inability to recruit a replacement employee
Escape clause for employers

The Fair Work Act states that no order can be made under the Fair Work Act against the Employer simply for refusing the request on reasonable business grounds.

However, the employer still needs to have complied with its obligations to respond to the request within 21 days and if the request is refused, to give reasons for the refusal.

Discrimination law also needs to be considered

Despite the above escape clauses, the law does not simply allow a carte blanche for Employers to refuse a requests on reasonable business grounds.

A female employee whose request has been refused may seek orders under the Sex Discrimination Act.

In a series of Federal Court cases, women who have encountered difficulties when seeking part time employment after returning to work from maternity leave have successfully argued that refusal to allow part time work has the effect of disadvantaging women.

Accordingly, where a request is to be refused on reasonable business grounds, employers should seek legal advice as to whether discrimination law will apply in the specific circumstances.

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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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