As a business owner you have certain legal obligations to your employees and sometimes it can be difficult to navigate the needs of your business with the needs of your employees, however it is important that you are aware of your basic legal obligations as governed by the Fair Work Act 2009 (“the Act”).
One of these legal obligations involves flexible working arrangements for employees. Today many employees require such an arrangement as they may be a working parent, or a carer, or a mature age worker. Under the National Employment Standards an employee does have the right to apply to their employer for flexible working arrangements.
Section 65 of the Act sets out the circumstances where an employee can request this. These circumstances are:
- They are a carer within the definition of the Carer Recognition Act 2010;
- They are a parent responsible for the care of a child of school age or younger (including an employee returning from parental leave);
- They have a disability;
- They are aged 55 or older;
- They are experience violence from a family member at home; or
- They are providing care or support to a family member who is experiencing violence at home.
In requesting a flexible working arrangement an employee has the right to seek:
- Changes in hours of work;
- Changes in patterns of work; and
- Changes in location of work.
An employee can only make this request though where they have been employed for at least 12 continuous months. A request for such an arrangement is to be made in writing to their employer and it must set out the details of their circumstances and also what changes they seek to their working arrangement.
If an employee makes a request to you as their employer you are required to provide a written response to the employee within 21 days, stating whether you grant the change or not, and if not detailed reasons for refusing it. A request can only be refused on reasonable business grounds as set out in the Act.
Reasonable business grounds are defined in section 5A of the Fair Work Amendment Act 2013 and include:
- The new working arrangements would be too costly to you as an employer;
- No capacity exists to change the working arrangements of other staff to accommodate the request;
- That it would be impractical to recruit a replacement employee to accommodate the request;
- That the requested arrangements would be likely to result in a significant loss of productivity or efficiency; or
- The requested arrangements would be likely to have a significant negative impact on customer service.