How HR can help managers with flexible working agreements

HR can play an important role in helping managers with flexible working arrangements

Managers are sometimes reluctant to agree to flexible work requests, and HR plays a critical role in helping them negotiate flexible working agreements, writes Gordon Williams

There’s been a real shift in the conversation about workplace flexibility since the right to request flexible work arrangements was first introduced in the National Employment Standards (NES) back in 2010.

Recently, for example, the NSW Premier Mike Baird declared his aim to make all 380,000 public service roles flexible by 2019, saying, “We’re changing our default position on the eight-to-six desk-bound job… in simple terms, the more flexible the arrangements, the more opportunities… that you’ve got to keep women in the workforce, to keep them in senior positions, and that produces great outcomes.”

And we are hearing the same thing from the private sector, too. For example, Westpac CEO, Brian Hartzer, has said (of the Bank’s push towards flexibility for all roles): “The way I see it, flexibility helps people achieve their full potential by removing barriers to success.”

But despite all the positive sentiment, I still have clients calling to say managers are reluctant to agree to flexible work requests. Following is a summary of the legal framework, the risks of saying no, and some guidance from the cases.

Legal framework
Under the NES, employees with more than 12 months’ service (including long-term casuals) can request a change in working arrangements if they:

  • are a parent of, or are responsible for, a child of school age or younger
  • are a carer (within the meaning in the Carer Recognition Act 2010)
  • have a disability
  • are over 55
  • are experiencing domestic violence themselves or providing support to a member of their family or household who is.

An employee must make their request in writing specifying the change and the reasons for it. The employer must respond in writing within 21 (calendar) days saying yes or no. And if they say no, they must provide reasons. Importantly, an employer can only say no if they have reasonable business grounds for doing so.

Legal risks
Interestingly, it’s not a breach of the FW Act for an employer to say no (even unreasonably). However, it could lead to:

  • a dispute being notified to the Fair Work Commission (FWC) if the employee is covered by a modern award or enterprise agreement
  • a discrimination claim, e.g. based on the employee’s carer responsibilities
  • an unfair dismissal claim – usually where the employee alleges constructive dismissal.

The other risk is not responding within 21 days, which can lead to a penalty of up to $54,000 for a company or $10,800 for an individual involved in the breach (e.g. HR or the employee’s manager).

What the cases say
If an employee makes a claim because their flexible work request is refused, the Court or FWC will need to decide if there were reasonable business grounds. They will do this based on the strength of evidence from the employee, their manager and HR. Therefore, it’s very important to be clear why you’re saying no and whether your evidence stacks up.

In one unfair dismissal case, the FWC accepted the employer’s evidence that it could not accommodate an employee’s part-time work request (after parental leave) because it would impact customer service. Relevantly, the employer relied on feedback from travel agents who worked with the employee, that they needed full-time support. In the circumstances, the FWC agreed the employer had reasonable business grounds for saying no, and therefore, the employee was not forced to resign but had done so because of her “personal circumstances”.

Another unfair dismissal case came to a different conclusion. The employee also wanted to work part time after returning from parental leave. The employer said no – saying the role needed to be done full time. However, before refusing, it explored other options including job share, extending the employee’s parental leave and offering the employee work one day per week (so it could also recruit a full-time replacement).

“Importantly, an employer can only say no if they have reasonable business grounds for doing so”

Although that all looks reasonable, what lost it for the employer was the fact the parental leave replacement (a contractor) had only worked part time when the employee was on leave, and continued to do so after the employee resigned. Even worse, the employer had made no effort to recruit a full-time replacement for the employee

In another recent case an employee wanted to start and finish work an hour later so he could help with his daughter’s school pick up and drop off. However, his employer said no because it would have had a significant negative impact on its operations. Although that might sound an exaggeration, the FWC agreed the refusal was reasonable because the arrangement would:

  • require additional transport to and from work
  • mean he’d be working alone for part of the day without support if an incident occurred
  • result in him missing important weekly tool box meetings.

It also helped the employer had approved 34 out of a total of 36 previous flexible work requests.

8 practical flexible working tips
What should you do to mitigate risks when assessing a flexible work request (especially if you’re thinking of saying no)?

  • Remember you have only 21 days to respond to a request – and could be fined if you’re late.
  • Focus on what the job really requires – e.g. full time, office based, supervision of others, customer or client contact?
  • Objectively assess and test the manager’s decision – avoid knee-jerk reactions.
  • Consider practical implications or challenges and whether these can be addressed (e.g. by technology).
  • Consider possible alternatives (e.g. job share).
  • If performance has been an issue, it’s OK to take it into account if it’s relevant to the proposed arrangement and it’s been raised with the employee before. If you’ve never raised the performance concerns, though, you need to tread very carefully.
  • Be clear what you’re agreeing to – is it a permanent or temporary change?
  • Implement a trial period or review (especially if there are concerns), and provide feedback if things are not going well.

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