Are you prepared for new flexible working rights?

Employees are able to request flexible working conditions under new laws which also place specific obligations on employers, writes Shana Schreier-Joffe

Increasingly, courts, tribunals and the government are recognising that the notion of an individual working eight or more hours a day for their employer, with little or no say over how and when they work, is inappropriate. The concept of flexible work arrangements for certain classes of employee was introduced in the NES as part of the Fair Work Act 2009. However, the idea is not a new one and has been part of anti-discrimination legislation for some time, protecting employees who have carer responsibilities.

New flexible working rights
The Fair Work Amendment Act 2013 builds on the ability for certain employees to request flexible working hours, and curtails the unfettered ability of employers to unilaterally change employees working hours. From 1 January 2014, employees are able to request flexible working conditions in an expanded list of circumstances, and employers will be required to consult with employees prior to making changes to their rosters and working hours. Section 65 of the Fair Work Act 2009 (Cth) allows employees to seek flexible working arrangements if an employee cares for a child under school age or an individual under 18 who has a disability. From 1 January 2014, categories of employees who can request flexible work arrangements has been expanded to include:

  • carers who care for individuals with a disability, medical condition, mental illness, or are frail and aged
  • employees with a disability
  • employees 55 years of age or older
  • employees currently experiencing violence from their family, and
  • employees that provide care or support to a member of the employee’s family who are experiencing violence from within their family.

What are reasonable business grounds?
An employer is able to refuse requests for flexible working conditions on the basis of “reasonable business grounds”. This is the current position and it has not altered. However, the amending Act now specifically defines what circumstances may constitute “reasonable business grounds”.

Reasonable business grounds will include situations where the request is too costly to implement; where there is no capacity to accommodate the arrangements; where it would be impractical to do so; where the request will cause a significant loss in efficiency or productivity; and where it is likely to negatively impact customer service.  This is an extremely broad definition and will give employers wide berth to refuse requests made by employees for flexible work arrangements. Employers, however, need to remain vigilant that they do not breach the anti-discrimination provisions in circumstances where flexible work arrangements are rejected. In addition, in light of the jurisdiction of the commission and also the objectives of the Act, it should be borne in mind that flexibility is often construed in favour of employees.

The intent of the amending Act’s focus on the right of employees to have more control over their working conditions is also evident in the introduction of laws which require modern awards formed or amended after 1 January 2014, to contain a provision mandating consultation between employers and affected employees prior to changes being made to the employees’ working times or rosters.

A flexible working precedent
Another example of increasing flexibility in favour of employees is demonstrated through the recent case of Klowss v Groote Eylandt Mining Company Pty Ltd. Vice President Lawler decided that the applicant could take carer’s leave, as a result of the applicant’s 14-year-old son’s carer’s absence due to a personal family situation four days prior to the applicant’s departure as a FIFO worker.

VP Lawler, found that the carer’s absence amounted to an emergency under the carer’s leave provisions of the Act. Despite the four days’ notice of the unavailability of the carer, it was nevertheless held that the applicant was not wrong in seeking carer’s leave as opposed to using her annual leave. This was on the basis that the circumstances directly affected the applicant’s son. Up until this decision, it has been assumed that in circumstances, where an employee has sufficient notice of changes to carer requirements for her or his child or family member, and the employee is not taking leave due to the injury or illness of a family member captured by the provisions, the employee would be required to take annual leave.

What should employers do?
Employers should endeavour to update their workplace policies as well as provide training to senior members of staff to ensure that they comply with the necessary protocols and laws now in place regarding flexibility available to staff. If the matter is not dealt with in an appropriate manner, difficulties may be encountered giving rise to possible discrimination claims, and a breach of the applicable modern award or Fair work Act.

It is also not unusual for disputes over working hours and flexibility to give rise to bullying claims, which from 1 January 2014, can be brought before the Fair Work Commission.

4 practical steps to flexible working compliance

  1. Revise your policies to ensure that they are up to date and cover the new consultation provisions regarding the request for flexible working hours, and changes to working hours
  2. Train managerial staff on the rights of employees and how to deal with these issues appropriately
  3. Train staff on the consequences of failing to provide flexibility if necessary and the possible discrimination/bullying claims that may arise as a result, and
  4. Revise employment contracts to ensure the contract provides for the right to unilaterally alter work duties, position and location.

Shana Schreier-Joffe is the executive counsel of Harmers Workplace Lawyers and is one of Australia’s leading workplace lawyers with extensive experience across all areas of workplace law.