Author: Lehanne Bleumink, Gold Seal HR Services Manager.
As part of the 4-yearly review of the Modern Awards, the rules around flexible work requests changed. The Fair Work Commission has inserted into all Modern Awards a model term for requests for flexible working arrangements. This change took effect on 1 December 2018. Employers are no longer able to deny reasonable requests without just cause. The term will apply when an employee has made a request for a change in working arrangements, with regards to the hours, location and/or pattern of their work, under the National Employment Standards (NES).
Flexible working arrangements are already part of the NES, but under the NES there’s no obligation to deal directly with the requesting employee about the request. The new model term requires the employer to discuss the request directly with the employee before responding to the request. The aim of this is to genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances, having regard to:
- the needs of the employee arising from their circumstances;
- the consequences for the employee if changes in working arrangements are not made; and
- any reasonable business grounds for refusing the request.
Employers are required to give a written response within 21 days of receiving the request, stating whether they grant or refuse the request. If the employer refuses the request, the written response must include details of the reasons for the refusal. The Award model term goes further and requires that the reasons for refusal include:
- the business grounds for the refusal and how these grounds apply;
- if the employer and employee could not agree on a change in working arrangements, whether or not there are any changes the employer can offer, so as to better accommodate the employee’s circumstances; and
- if the employer can offer the employee such changes, details of those changes.
Under the Award model term, if the employer and employee reach an agreement on a change that differs from the one initially requested by the employee; the employer is required to provide the employee with a written response to their request, setting out the agreed changes in working arrangements.
Example: An employee may request to work from home two days a week. The employer can refuse the request, however will need to justify the reasonable business grounds, then state whether alternative options are available. It’s common to reject requests because it’s too expensive to provide the necessary equipment which may well be a legitimate reason; however, it’s not enough to simply say the job cannot be done effectively from home.
It is important for employers to be reasonable in their approach to assessing requests for flexible working arrangements, but also understand employers will remain within their rights to ensure employee performance is not compromised by granting such requests. It is recommended that once an arrangement has been implemented, that it be reviewed regularly (e.g. every 3-6 months). If the arrangement needs to be changed due to business needs, changes should be communicated to the employee and notice of the change given in writing.
The new rules do not guarantee employees automatic rights to flexible arrangements, but they are guaranteed the right to an explanation as to why a request may be denied following negotiations between both parties.
‘The right is to request – not an automatic right to work flexible arrangements.’
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