Flexible Work Arrangements
Flexible work arrangements. What are they? Who is entitled to request them? On what grounds can they be refused?
Between the mid-1970s and the early 1990s, Australia saw the introduction of various pieces of Federal and State anti-discrimination legislation. These instruments were designed to give domestic effect to obligations under international law.
After the introduction of these laws and given that work is an activity which unlawful discrimination based on certain attributes is prohibited, it has become more common for workplaces to make certain adjustments for people who have protected attributes. Reasonable adjustments were quite prevalent among workers who have impairments, however on a practical level, this expanded to the accommodation of other attributes that are also protected, providing unjustifiable hardship was not experienced (e.g. family responsibilities; religion etc). The reason for this is because a refusal in itself can provide a basis for direct or indirect discrimination, depending on how it is made.
Fast forward to 2019, the evolution of social norms and modern technology means that we have continued to witness changes in our work practices. According to the Productivity Commission in the context of its research and recommendations into paid parental leave, diverse employees, flexible work practices and leave arrangements all benefit businesses. These things help to improve productivity, perspective, culture, knowledge retention, loyalty and significant losses caused to businesses by staff turnover.
That leads us to section 65 of the Fair Work Act which allows employees to request flexible working arrangements. According to the Explanatory Memoranda, this section is designed to recognise and accommodate the struggle connected with balancing professional and personal responsibilities with an employer’s potential need or desire for continuity. It is modelled on similar principles that exist under anti-discrimination law and in other industrial instruments.
In summary, this section allows employees to request flexible working arrangements if the employee:
- has parental responsibility for a child who is of school age or younger;
- is a carer;
- has a disability or impairment;
- is 55 or older;
- is experiencing family violence;
- is caring for a family member or someone from their household who is experiencing family violence.
It also gives employees who are returning to work after parental leave the ability to make a request to work part-time to help with caring for that child.
Making such a request is conditional upon:
- in the case of permanent employees, them having worked for the employer for at least 12 months; or
- in the case of casual employees, them being long term casual employees.
The request needs to be made in writing and must explain the reasons for it. Employers then have 21 days to respond. Furthermore, they can only refuse to make the necessary adjustments if they have ‘reasonable business grounds’ for doing so.
The question of what is and is not a ‘reasonable business ground’ is sometimes debated among employers and employees alike. Remembering that these provisions evolved from concepts that originated in anti-discrimination law, the legislature has sought to define it in a similar way to things like ‘reasonable adjustments’ and ‘unjustifiable hardship’. It therefore includes considering things like:
- whether the new working arrangements would be too costly for the employer;
- whether there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
- whether it is impractical to change the working arrangements of other employees or to recruit new ones;
- whether the change in working arrangements would result in significant losses in efficiency or productivity;
- whether the change in working arrangements would have a significant negative impact on customer service.
Reasonable business grounds, when tested, is intentionally difficult to rely on. It goes beyond employers refusing a request because it is ‘merely inconvenient’ to do so. Use of the words ‘reasonable’ and ‘significant’ not only involve an objective consideration of the surrounding circumstances for each request, but also whether the impact suffered by the employer is material. That is similar to the method for determining reasonable adjustments under anti-discrimination legislation and other industrial instruments that contain similar provisions before section 65 was introduced and amended.
In closing, ‘reasonable business grounds’ is a concept that imposes a positive obligation on employers to explore and find all reasonable options within the 21 days of receiving a request from employees. If reasonable options cannot be found, the employer then needs provide reasons as to why the adjustments cannot be made.
Either way, a decision to refuse should be exercised carefully by employers. Non-compliance will not only create exposure under the adverse action provisions, but potentially anti-discrimination legislation given that most of the areas are protected attributes, or can be linked to a protected attribute.