3 steps for flexible work

By Andrew Hobbs on January 10th, 2018
  1. Industrial Relations
  2. Flexible Work Arrangements


IF INTRODUCING flexible working arrangements to your workplace is on your agenda for the year ahead, you’re not alone.

A recent study from the Workplace Gender Equality Agency shows that 68.3% of employers now have a flexible working arrangement policy, up 10.8% from its first year of reporting in 2013-14.

Under the Fair Work Act 2009, workers can request a change to their working hours or location after 12 months of constant employment if they have a disability, are a parent or carer of a school-aged or younger child, are aged over 55 or are experiencing family violence.

While many companies are drafting new policies, some managers are still finding it a challenge to deal with these requests.

Just because an employee requests flexible working hours doesn’t mean a company has to agree – it can refuse a request for change on reasonable business grounds.

But if you do agree to change working arrangements, below are three key steps you should consider:

  1. Set out the rules beforehand

Having a policy in place will help you to set out a process for eligible employees to request flexible work, as well as potentially expanding access to the program to other workers.

The Fair Work Act requires that any request for flexible work arrangements be made in writing and should set out details of the change sought – including the reasons for the change and whether they want the change to take place for a limited period, or indefinitely.

However, encouraging your employees to talk to you prior to submitting a written request for the flexible working arrangements can help to foster an arrangement that suits both parties.

You can require an employee to give a certain period of notice of a request before the proposed effective date under a policy – but you cannot refuse to recognise a request made under the FW Act because it does not meet your notice requirements.

You should also note that while a request for flexible work made under the FW Act must be due to specified circumstances – school-aged children, disability, age or family violence – the employee does not have to prove to you that these circumstances exist.

Once the employee has made a written request for flexible work arrangements, you must give a written response to the request within 21 days, stating whether you accept or refuse the request.

  1. Considering the request

Any requests for a flexible work arrangement should be considered carefully, and on a case-by-case basis.

To determine whether an arrangement is reasonable, the following points are among the things that should be taken into account:

  • the work that the employee does;
  • the employee’s parental or carer responsibilities, including the arrangements that will be required to enable the employee to fulfil them;
  • the timing of the request, e.g. how soon the new arrangement needs to begin and how long it is required for;
  • how much the arrangement will cost, taking into account penalty rates, overtime, decreased production, additional equipment and training replacement staff;
  • what effect the arrangements will have on other employees and your business;
  • how not implementing the flexible work arrangement could effect:
    • the employee;
    • the employee’s workload; and
    • customer service.
  • whether the employee can undertake safe work under the arrangement; and
  • whether other legal obligations will be breached by modifying the work arrangement, e.g. health and safety laws.
  1. Record the reasons for your decision

While you may refuse the request, it must be on the basis of reasonable business grounds and you must give your reasons for the refusal in writing.

It is best practice to arrange a meeting with the employee to discuss your reasoning prior to providing the written response to ensure they understand your decision-making process.

Reasons might include:

  • the requested working arrangements would be too costly for the employer;
  • there is no capacity to change the working arrangements of other employees to accommodate the requested working arrangements;
  • it would be impractical to change the working arrangements of other employees, or to recruit new employees, to accommodate the new working arrangements requested by the employee;
  • the new working arrangements would be likely to result in a significant loss in efficiency or productivity; and
  • the requested working arrangements would be likely to have a significant negative impact on customer service.

Documenting your decision-making process to demonstrate that you have properly considered the request will protect your business if your refusal is later challenged.

For example, if you think that the new working arrangements requested will be too costly for your business, you should document your financial calculations and assumptions in writing.

To find out more

Chapter F3 Flexible Work Arrangements in the Employment Law Practical Handbook covers a number of topics related to the introduction of these arrangements into your workplace, including a guide on trialling a flexible work arrangement.

The chapter also contains a step-by-step guide to introducing flexible work arrangements and a similar guide to resolving any disputes about these arrangements.

It is one of more than 70 chapters in the Handbook, each of which contain information designed to help you run your business better.

Subscribers to the Handbook can also access the Workplace Helpdesk, where answers to your questions are provided by Holding Redlich – the lawyers behind the Handbook – direct to your email inbox.

Sign up for a free 14-day trial today to secure access to the Handbook and find out more about what it can offer your business.

Click here to find out more.


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