Employment & Safety Update – 17 March 2021

Employer’s obligations for flexible working arrangements

Many employees’ working arrangements have changed because of the impacts caused by coronavirus. As things continue returning to normal, employers are finding that some employees wish to continue working from home. Many employers have found that working from home has worked well and are starting to implement longer term arrangements – this is fine if it works for both parties, however, care needs to be taken where employers want things to ‘go back to normal’.

For employers, it is important to genuinely and carefully consider every flexible working arrangement request and, if a request cannot be accommodated, consider whether it is possible to offer alternative arrangements.

Flexible working arrangements under the Fair Work Act 

The Fair Work Act allows employees to request flexible working arrangements, provided they have completed at least 12 months of continuous service with their employer. Flexible working arrangements include requests to work from home.

An employee may request changes to their working arrangements, including working from home, if they require flexibility because they:

  • are responsible for the care of a child who is of school age or younger;
  • are a carer within the meaning of the Carer Recognition Act 2010;
  • have a disability;
  • are 55 or older; or
  • are experiencing violence from a member of their family or are providing care or support to an immediate member of their household because that person is experiencing violence from their family.

Casual employees are also entitled to request flexible working arrangements if they have been employed on a regular and systematic basis for at least 12 months, and they have a reasonable expectation of continuing employment with the employer.

When can an employer refuse a flexible working arrangement request?

If a request is refused, written reasons must be provided. A request for flexible working arrangements can only be refused on ‘reasonable business grounds’ which include:

  • the new working arrangement would be too costly for the employer;
  • incapacity to reorganise the working arrangements of other employees to accommodate the working arrangements requested by the employee;
  • it would be impractical to change the working arrangements of other employees to accommodate the working arrangements requested by the employee;
  • the new working arrangement would likely result in significant loss of efficiency or productivity; or
  • the new working arrangement would be likely to have a significant negative impact on customer service.

Employers must give genuine consideration to a request. This is not just good practice for employee relations but offers protection should a claim be made. This is critical because refusing requests to work from home on the grounds of age, disability or carer responsibilities may amount to direct discrimination under relevant discrimination legislation and under the Fair Work Act.

Case example

In Phillips v Integrated Medical Solutions Group Pty Ltd [2019] FWC 6225, a medical receptionist filed an unfair dismissal application on the basis she was forced to resign after she was denied her flexible working arrangement request. The FWC found the employer “repeatedly, reasonably and professionally corresponded with Ms Phillips about the reduced hours of work it could accommodate” and had not acted unreasonably in refusing the request.

The FWC reiterated that under the Fair Work Act an employer was not bound to agree to an employee’s flexible working arrangement request, and an employee was not entitled to demand certain working arrangements.

Lesson for employers

Carefully consider every flexible working request based on the individual circumstances. A ‘cookie cutter’ response will not only undermine relations with your employees but could result in claims.

If you have any queries or would like further information regarding this update, please contact:

Joe Mullavey
Principal
M: 0416 794 061
E: jmullavey@pageseager.com.au

Published: 17 March 2021

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