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Changes to flexible working arrangements and the NES

by | May 6, 2023 | C1: Commitment, C2: Capability, C4: Culture, EVP, Fair Work

example flexible working arrangement

Under National Employment Standards, employees (other than casual employees) who have worked with the same employer for at least 12 months can request flexible working arrangements if they:

  • are the parent, or have responsibility for the care, of a child who is school aged or younger
  • are a carer (under the Carer Recognition Act 2010)
  • have a disability
  • are 55 or older
  • are experiencing violence from a member of the employee’s family, or
  • provide care or support to a member of their household or immediate family who requires care or support because that person is experiencing violence from their family.

These entitlements have been around for many years but some changes are coming in.

From 6 June 2023, the right to request flexible working arrangements will also apply to:

  • employees, or a member of their immediate family or household, experiencing family and domestic violence
  • employees who are pregnant.

In what circumstances does the entitlement arise?

What is important to remember with this entitlement is that the need for the flexible working arrangement arises specifically from the particular attribute (ie the parental or carer status or the disability, etc) that applies to the employee.

For example, the fact that I am a parent does not, of itself, mean that I have an automatic entitlement to have a flexible working arrangement. However, I do have that entitlement if the exercise of my parental responsibilities gives rise to a need for a flexible working arrangement.

Similarly, the fact that I am 55 years of age or older does not of itself mean that I can access a flexible working arrangement but I have the entitlement if a flexible working arrangement is necessary to support my transition to retirement or to allow for some age-related disability (ie it is related to the fact that I am 55 years or older),

In some cases, multiple attributes can come in to play eg I could be over 55 years of age and transitioning to retirement and be a carer for my grandchild or I could be a victim of domestic violence and have parental responsibilities. Sometimes it will be this combination of factors which gives rise to the genuine need for a flexible working arrangement.

What must an employer do if an employee requests a flexible working arrangement?

Under current rules, employers have to genuinely consider a request from an eligible employee and can only refuse a request on reasonable business grounds. An employer must respond to a request in writing within 21 days and, if the request is refused, provide details on the “reasonable business grounds” in which it has been refused.

However, from 6 June 2023, two more very important changes come in:

  • Employers will have a duty to consult the employee about the request for a flexible working arrangement – to discuss it with the employee and to see if their needs can be accommodated in some way and
  • If the employer and the employee are not able to reach agreement or the employer does not respond in writing within the prescribed 21 day period, the matter can be taken to the Fair Work Commission for mediation, conciliation or mandatory arbitration.

What are reasonable business grounds?

The threshold of “reasonable business grounds” and examples of reasonable business grounds on which an employer can refuse a request have not changed.

Without limiting these grounds, they include the following:

  • that the new working arrangements requested by the employee would be too costly for the employer

  •  that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee

  •  that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee

  • that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity, and

  • that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.

The specific circumstances of the employer, including but not limited to the size and nature of the employer’s enterprise, are relevant to whether an employer has reasonable business grounds to refuse a request.

What should I do with a request from an employee who is not eligible?

 If an employee is not eligible due to not having completed 12 months service but would otherwise qualify because the request arises from needs associated with one or more of the prescribed attributes, we would suggest that you should still see if there is a way to accommodate the employee’s needs even if they technically do not have a legal right to request a flexible working arrangement.

There are other jurisdictions where an employee might be able to take a complaint of unlawful discrimination if a request is unreasonable refused.

If an employee is not eligible because the request does not arise from a need associated with one or more of the prescribed attributes, there is less of a risk of an employee having a legal basis on which to prosecute a complaint of some sort.

Having said that, we know that, resultant from COVID lockdowns, there are a lot of people who have had the experience of working from home and are looking for working from home or hybrid working arrangements.

Employers really need to look at what they are able to offer employees in flexibility of working arrangements as part of their overall talent attraction and retention strategy.

Some organisations are shifting to 4 day weeks.

For categories of employee who cannot work from home because of the job that they do (eg  nurses, factory workers, drivers, construction workers, hospitality and shop-based retail staff), look at what flexibilities you might be able to offer such as an RDO or a 9 day fortnight or an early finish on Fridays. 

Need help?

Give us a call on 1300 108 488 to arrange your free first consultation to see how we can help with advice and support on this or any other HR matter. 

Note: some of the content has a been sourced from publications by the Department of Employment and Workplace Relations and the Office of the Fair Work Ombudsman. 

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