Employers may be aware from press reports of the announcement that was made in February 2013 by Bill Shorten, the Minister for Employment and Workplace Relations, of changes that the Gillard Government wants to make to the Fair Work Act to broaden the right of employees to request flexible working arrangements.
However, many employers may not be aware of the current obligations that exist in relation to such requests.
Under the current law (contained in section 65 of the Fair Work Act 2009) an employee who is a parent or who has responsibility for the care of a child can request an employer for a change in working arrangements to assist the employee to care for the child. However, an employee can only make such a request if the child is under school age or is under 18 and has a disability. Examples of changes in working arrangements that might be requested include changes in hours of work, changes in patterns of work or changes in location of work (for example, working from home where appropriate).
Employees are only entitled to make such a request once they have completed at least 12 months of continuous service. Any request must be in writing and must set out details of the changes sought and the reasons for the changes.
Once an employer receives such a formal written request, they must provide a written response to the employee within 21 days stating whether they grant or refuse the request. However, it is important to note that an employer may only refuse such a request on “reasonable business grounds”. If the request is refused, the written response of the employer to the employee must include details of the reasons for the refusal.
As the matter has not been tested, it is not clear what will constitute “reasonable business grounds”. However, if it is found that an employer has refused a request without having “reasonable business grounds” this would constitute a breach of the National Employment Standards under the Fair Work Act. Curiously, however, unlike most breaches of the National Employment Standards for which there are substantial fines payable, there is no monetary penalty for such a breach of the National Employment Standards and so the attitude adopted by some employers has been to disregard these obligations or to treat them lightly.
Notwithstanding the fact that there are no penalties payable for such a breach, it would nevertheless be disruptive to a business to be involved in the process of having a Fair Work investigation of a complaint. For this reason it is important to give proper consideration to a request, and if it is refused, the response should set out well thought out “reasonable business grounds” – a poorly thought out or expressed response might lead to either a complaint or a disgruntled employee or both. Reasons for refusing will depend on the facts of each case, but as the Explanatory Memorandum to the bill which introduced these laws explained it may include the following:
- 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; or
- the inability to recruit a replacement for the employee, or the practicality or otherwise of the arrangements which may need to be put in place to accommodate the employee’s request.
In our experience a request by an employee to work from home requires the employer to, amongst other things, consider the following:
- the safety of the employee’s home working environment (this is an OH&S requirement). The employer must discharge its OH&S obligations by making the employee’s home office safe;