Flexible working: the law and best practice

From 1 January 2010, the National Employment Standards (NES) replace the non-pay rate provisions of the Australian Fair Pay and Conditions Standard (the Standard).

Under the NES eligible employees have a right to request flexible working arrangements for employees to assist them to care for their child.

What’s a flexible working arrangement?

From 1 January 2010, an employee who is a parent, or has responsibility for the care of a child, may request a change in their working arrangements.

Examples of changes in working arrangements may include:

  • Changes in hours of work (e.g. reduction in hours worked, changes to start / finish times);
  • Changes in patterns of work (e.g. working ‘split-shifts’ or job sharing arrangements);
  • Changes in location of work (e.g. working from home or another location).

Who’s eligible?

An employee who is a parent, or has responsibility for the care of a child, may request a change in their working arrangements.

In order to be eligible to make this request an employee:

  • Must have completed at least 12 months continuous service with their employer immediately before making the request; or
  • Be a casual employee that;
  • Has been employed by the employer on a regular and systematic basis for a sequence of periods of employment of at least 12 months, immediately before making the request; and
  • Has a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
  • Must have care of a child who is either;
  • Under school age (i.e. the age at which the child is required by the applicable State or Territory law to start attending school);
  • Under 18 and has a disability.

How do I make a request?

The request must:

  • Be made in writing;
  • Set out details of the change sought and reasons for the change.

What does the employer need to do?

Employers must give employees a written response to the request within 21 days, stating whether they grant or refuse the request.

Employers may refuse the request only on reasonable business grounds. If the employer refuses the request, the written response must include the reasons for the refusal.

What are the employer’s options?

The NES doesn’t require an employer to agree to a request for flexible working arrangements, but refusal must be made on reasonable business grounds, as outlined below.

Employers and employees are encouraged to discuss their working arrangements and, where possible, reach an agreement that balances both their needs.

Factors that may be relevant in defining reasonable business grounds could include:

  • The effect on the workplace and the employer‘s business of approving the request, including the financial impact of doing so and the impact on efficiency, productivity and customer service;
  • The inability to organise work among existing staff;
  • The inability to recruit a replacement employee;
  • The practicality or otherwise of the arrangements that may need to be put in place to accommodate the employee‘s request.

Example of a request for flexible working arrangements

Greg would like to start work at 10am, four days a week, to enable him to take his three year old son to pre-school. He submits a written request to his employer setting out the reasons for requesting the change in hours. His employer considers the request but is unable to agree to the changes, as Greg would miss an important nationwide teleconference each morning.

However, instead of simply refusing the request, Greg’s employer discusses the situation with him. They agree to an arrangement where Greg will start work at 10am four days a week and participate in the teleconference by phone hook-up before he leaves home, while attending in person for the most important weekly agenda-setting meeting.

Greg’s employer gives him a written response, setting out details of the reasons for the refusal of the initial request as well as a statement of the revised agreed arrangements.

What happens if there’s a dispute?

If the parties to the dispute have agreed in an employment contract, enterprise agreement or other written agreement to seek mediation in case of disagreement, the Fair Work Act 2009 empowers Fair Work Australia or some other person to deal with the dispute.

The Fair Work Act 2009 allows State and Territory laws to continue to apply to employees where they provide more beneficial entitlements than the NES in relation to flexible work arrangements.

Please note that the information provided on this page:

  • Does not provide a complete or authoritative statement of the law;
  • Does not constitute legal advice by Net Lawman;
  • Does not create a contractual relationship;
  • Does not form part of any other advice, whether paid or free.
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