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Employers, keep control of flexibility arrangements

Employers, keep control of flexibility arrangements

By Emma Heuston, Founder & Principal Lawyer, The Remote Expert

Did you know that in Australia some employees have the legal right to request flexible working arrangements?  This isn’t a voluntary workplace policy some businesses choose to apply. It is the law for some categories of worker.

What is the law?

Section 65 of the Fair Work Act 2009 (Cth) (FWA) says that employees who have worked for their employer for at least 12 months on a full time or casual basis or long term casual employees can request flexible working arrangements if they:

·      are a parent or responsible for the care of a child who is school age or younger;

·      are a carer (as defined in the Carer Recognition Act 2010);

·      have a disability;

·      are 55 years or older; and

·      are experiencing domestic violence or caring for someone in their household experiencing domestic violence.

(referred to in this article as “the Categories”)

Does an employer have to agree?

All employers must seriously consider a request for a flexible work if their employee falls into one of the Categories. However, the employer can refuse the request on “reasonable business grounds”.

What are reasonable grounds?

Reasonable grounds will vary from business to business. However, in broad terms the following can be considered “reasonable business grounds”:

·      the request would negatively impact on customer service standards in the business;

·      there would be a loss of productivity or efficiency if the request was granted;

·      the requested arrangements would be too costly to implement; or

·      the team structure cannot be changed (for example  new employees hired or other employees asked to job share) or there would be too much work shifted to other team members if the request was granted.

What is flexible work?

Flexible work is unique to each employee, depending on their circumstances.  It can be:

·      part time;

·      job sharing;

·      compressed or extended hours;

·      time in lieu (rostered days off/ flex time);

·      working from home or some other location; or

·      purchasing school holiday leave.

What does a flexible work request look like?

A request under the FWA must be made in writing and outline the change the employee wants to make to their work arrangements and the reasons for the change. But……..

the difference between a good request and a great request will be if the employee has given thought to the employer in making the request. This means the request should consider way the request will impact upon the employer’s business and their colleagues and team members plus anticipate any obstacles the employer might face in implementing the request.

By anticipating these practical, financial and logistical issues an employee greatly increases their chances of having the request granted and a savvy employee may even be able to increase profit for their employer in the meantime and strengthen their position in the business.

How can an employer keep control of their business in the face of these requests?

There are serious benefits to flexible work. However, flexible work should make a business more profitable NOT less.

Benefits like staff retention, decreasing absenteeism and increased productivity are tangible benefits that can help increase profits in an organisation. In the face of flexible work requests, some of which may feel like an attack on your business if they are frequent or unrealistic, it is a good idea to keep these benefits in mind when fielding requests.

My top tips for making sure employers stay in the driver’s seat when implementing flexible work:

1.     Have a face to face discussion with your employee to work out the arrangements and if something does not suit you, ensure you can negotiate a compromise that works for both parties;

2.     Remain calm and professional;

3.     Document the agreed change and ensure any agreement you make to flexible work is on a trial or probation basis to ensure you can put a stop to the arrangements if they aren’t working out; and

4.     Consider being proactive – develop flexible work policies or employee handbooks to establish the way in which a flexible work request may be made and the types of flexible work that your business will consider. By taking this proactive action you retain control over the process, rather than being subject to changes and updates to the law around this.

How to respond to an employee request for flexible work?

Even if you and your employee can agree on a flexible work arrangement, you MUST document it. If you can’t agree, you are obligated under the FWA to respond in writing to your employee within 21 days of the request being made by the employee.  The response needs to say whether the request has been granted or refused.  If it has been refused, just saying “no” is not enough. The written response must include the reasons (or reasonable business grounds) for the refusal.

After a refusal, an employee can approach the Fair Work Commission for assistance, the usual outcome being a conference between the employer and the employee to workshop a solution.  The usual outcome of such a conference is the Fair Work Commission making a recommendation, though note this is not binding.

The solution to your flexible work problems

At The Remote Expert, I have personally developed solutions to these flexible work problems businesses face every day.

These solutions include the following do it yourself downloadable templates:

·      Employee Handbook here

·      Flexible Work Policy here

·      Remote Work Policy here

·      Variation of Employment contract here

·      Remote Work Employment contract here

·      Work Health and Safety interactive audit and report here

I also offer a template bundle in my Remote Work Handbook for a preferred customer price here or help businesses on retainer over 1 to 12 months period here.

You choose your own adventure and if you can’t decide or need to think through some specific issues, reach out here for a free discovery chat.

About me

I am the Founder of the Remote Expert and a lawyer with 19 years experience. I am also an author and former remote worker.  I am passionate about remote work and ensuring employers get it right so it works out as it should for employers and employees.

Read more about me here or connect with me on LinkedIn here.