Get up-to-date with the flexible work laws

Whether you are an employee or employer, you may have caught wind of some recent changes over the past 12 months or so. As a matter of fact, since December 1 2018, the rules regarding flexible work arrangements have been updated. Let’s have a look at who this hurts and who this helps.

What are flexible working arrangements?

Flexible working arrangements include changes to an employee’s hours of work, patterns of work (such as split shifts or job sharing) and location of work.[1]

There are several categories of employees who may be eligible to request flexible working arrangements, including those who are parents,[2] carer’s,[3] or over 55 years old.[4] Any requests for changes by an employee must be in writing,[5] and set out the details of and reasons for the sought changes.[6] Prior to the employer responding to an employee’s request, they should firstly discuss the request with the employee in attempt to reach an agreement.

The rejection of a request:

If employers refuse a request, they need to have a good reason to back-up their decision. The refusal of a request for flexible working arrangements is only permissible where there are reasonable business grounds to reject.[7] Such grounds can include the requested arrangements are too costly or onerous on the employer,[8] it would result in productivity losses,[9] or accommodating to the request will have an adverse impact on the working arrangements of other employees.[10] Lawyer Andrew Jewel, the principal lawyer at McDonald Murholme, emphasises that in certain circumstances it may be impractical to accept a request, for example, the alteration of one’s starting or finishing times could negatively impact the customer service provided in a client-facing role.[11]

The employer must provide a written refusal (or acceptance) of the request within 21 business days of receiving it.[12] If the request is rejected the response must include details of the reasons for the refusal.[13]

Understandably, not all requests will be able to be accommodated to. It is important that an employer remains open with all employees and takes into account any suggestions to ensure positive employment relationships are maintained.[14]

The benefits of the changes:

The new flexible working arrangements can be beneficial to both the employer and employees. Employers will have the opportunity to request a more flexible arrangement, catering to their specific needs.

Accommodating to an employee’s needs can also in-turn be beneficial to the employer, as specified by Jewel.[15] These rules allow the employer to provide the employee with the flexibility they require to stay in their job. Thus, not only are the employees’ specific needs accounted for, but employee longevity is increased, minimising staff turnover.

Criticism of the changes:

Whilst the changes serve several benefits, they can potentially have negative implications for small or start-up businesses, who need to keep the preferences of customers at the highest priority, rather than employees.[16]

However, if a small business is lacking the resources or capacity to accept a request, they can reject the request under the reasonable business grounds exception.

All in all, the recent changes can be considered a win for most. It promotes an employee’s longevity, ultimately beneficial to both the employee and employer.

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[1] Fair Work Act 2009 (Cth) s 65.

[2] Fair Work Act 2009 (Cth) s 65(1A)(a).

[3] Fair Work Act 2009 (Cth) s 65(1A)(b), Carer Recognition Act 2010 (Cth) s 5.

[4] Fair Work Act 2009 (Cth) s 65(1A)(d).

[5] Fair Work Act 2009 (Cth) s 65(3)(a).

[6] Fair Work Act 2009 (Cth) s 65(3)(b).

[7] Fair Work Act 2009 (Cth) s 65(5).

[8] Fair Work Act 2009 (Cth) s 65(5A)(a).

[9] Fair Work Act 2009 (Cth) s 65(5A)(d).

[10] Fair Work Act 2009 (Cth) s 65(5A)(c).

[11] Andrew Jewel, The Australian HR Institute, Changes to flexible work laws: what HR needs to know (2018).

[12] Fair Work Act 2009 (Cth) s 65(4).

[13] Fair Work Act 2009 (Cth) s 65(6).

[14] Kate Neilson, The Australian HR Institute, Changes to flexible work laws: what HR needs to know (2018).

[15] Andrew Jewel, The Australian HR Institute, Changes to flexible work laws: what HR needs to know (2018).

[16] Kate Neilson, The Australian HR Institute, Changes to flexible work laws: what HR needs to know (2018).