About this Bendigo Regional HR Network Event
Summary of Legal Requirements
Some employees have the right to ask for flexible working arrangements, which can only be refused for certain reasons. These entitlements come from the National Employment Standards (S65 of the Fair Work Act).
What is a flexible working arrangement?
Flexible working arrangements include changing hours of work, patterns of work and places of work.
Who is eligible?
An employee is eligible to request this type of flexible working arrangements if he/she:
- has been with their current employer for at least 12 months or is a casual employee who has been employed regularly and systematically for at least 12 months and is likely to continue working regularly
- is a parent or guardian of a child who is school age or younger
- is a carer (as defined in the Carer Recognition Act 2010)
- has a disability
- is 55 or older
- is experiencing family or domestic violence
- is caring for, or supporting, an immediate family or household member who requires care or support because of family or domestic violence
What are the minimum procedural requirements?
- Requests must be made in writing, giving details of the change sought and the reasons for the change.
- Employers need to accept or refuse requests in writing within 21 days of receiving the request. Employers can only refuse on ‘reasonable business grounds’ and must provide details of the reasons. Reasonable business grounds include but are not limited to:
- the new working arrangements would be too costly for the employer to implement
- there isn’t any capacity, to change the work arrangements of other employees affected, or recruit new employees
- it would be impractical to change the work arrangements of other employees, or recruit new employees
- the new working arrangements would be likely to result in a significant loss in efficiency or productivity
- the new working arrangements would to have a significant negative impact on customer service
If there are entitlements that are more beneficial to employees under other State laws, these still apply. The Equal Opportunity Act (s17) has similar provisions regarding accommodating responsibilities as a parent or carer with regard to the offer of employment.
An employee may have remedies under relevant discrimination legislation, including the discrimination provisions under the Fair Work Act if an employee considers they have been discriminated against by the employer’s handling or refusal of their request.
For Further Information from the Fair Work Ombudsman:
- Fact sheet – requests for flexible working arrangements and the National Employment Standards http://www.fairwork.gov.au/Resources/fact-sheets/Pages/national-employment-standards
- Best Practice Guide – use of individual flexibility arrangements http://www.fairwork.gov.au/Resources/best-practice-guides/Pages/use-of-individual-flexibility-arrangements
Fourteen flexible work practices you can implement in your workplace:
- Job-share: when two or more people share the responsibilities, hours, salary and benefits of one full-time job
- Part-time: when an employee works less than full-time capacity and has reasonably predictable hours of work. They receive the same entitlements as a full-time employee but on a pro rata basis
- Employee-choice rostering: this allows employees to elect or choose shifts on a permanent or rotating basis that best suits their caring responsibilities
- Working from home: involves employees working away from the office, usually at home. It can occur on a full-time, part-time, temporary or permanent basis
- Flexible working hours: when a set number of hours per week or month are determined with flexibility about when they are achieved
- Hours’ bank: additional hours may be worked and stored in a ‘bank’ for quieter periods
- Annualised working hours: involves rearranging the hours that staff work throughout the year to meet seasonal or fluctuating workloads. These hours are paid at a standardised weekly rate, even though the hours actually worked may vary during the year
- Compressed work week: usually involves working full-time hours over fewer days. For example, 3 38 hour x 5 day week may be worked over 4 days
- Seasonal start and finish time: usually applicable to outdoors industries – summer work starts at dawn and finishes early while winter work starts later
- Purchased annual leave: enables an employee to purchase additional leave during the course of the year. That means an employee would receive an additional 4 weeks’ paid leave per year as the employee’s 48-week salary is paid over 52 weeks. This can also work on 2- or 6-week purchase plan
- Extended unpaid leave: when an employee has exhausted their leave entitlements but still requires more time off. Additional leave days are granted without pay or loss of job and are usually for short periods
- Make up time: where time away from work is made up at another time, usually within close proximity to the occurrence. No pay changes occur as a result
- Change travel and overnight stays: when travel is reduced or timings changed to accommodate employee requirements, e.g. they do not have to travel during school holidays
- Sabbaticals: this is an extended period away from work to pursue study or other development activities. Some employers pay employees while on sabbatical, while others do not pay but allow the time away