When 4 into 3 won’t go

By Jeff Salton on August 28th, 2017

Our Helpdesk – staffed by employment lawyers at Holding Redlich – is kept busy answering our Employment Law Practical Handbook subscribers’ questions. This is one we received recently.

The problem that required a solution was how to respond to a permanent employee’s request to reduce his shifts from four days a week down to three days a week.

In some cases, that’s not a problem but for this employer, the workload demanded that four shifts a week were needed to complete the tasks.

So, how does the company respond to the request when three days is not a viable option? Can the company say “take it (four days) or leave it (resign)”?

The Helpdesk offered this reply.

We are finding that this type of request by a worker is becoming more commonplace. However, there is not always a simple yes/no response that can be given.

For instance, it will depend on whether the worker is entitled to request flexible working arrangements under the Fair Work Act (FW Act), and if the worker is employed under a contract of employment, an enterprise agreement or a modern award.’

Without giving specific legal advice, employers may find the general information below useful.

An employee may request flexible work arrangements under the Fair Work Act if they have completed at least 12 months of continuous service with your company immediately before making the request and their request to change their work arrangement is for a reason that is recognised under the FW Act. For example that the worker:

  • is a parent;
  • is responsible for the care of a child who is of school age or younger;
  • has a disability;
  • is 55 years or older;
  • is experiencing family violence;
  • is a carer (within the meaning of the Carer Recognition Act 2010); or
  • is providing care or support to a member of their immediate family or household because they are experiencing violence from a family member.

If the worker is entitled to a flexible work arrangement, companies may refuse the request if they have reasonable business grounds for doing so.

You should properly document these grounds and support them with evidence. Please note that even if you believe that you have reasonable business grounds for refusing the request, there is a risk that the employee may bring a claim against you for unfair dismissal (by way of constructive dismissal if the employee is forced to resign), adverse action or under anti-discrimination law.

If you believe the worker is not entitled to flexible working arrangements you may be entitled to insist that the contract remain four days a week. However, you should seek specific legal advice on this point.

Grey areas

As you can see (read) here, employment law is not always black and white. There are a lot of elements to consider before decisions are made.

That’s why it’s vital that you have the best available information at your fingertips and access to a legal ‘friend’ when you need it.

Therefore, subscribing to the Employment Law Practical Handbook makes good business sense.

Written in plain English by the employment law experts at Holding Redlich, the 70-plus chapters contained in the handbook cover all aspects of the law from Absenteeism and Flexible Work Arrangements, through to Sexual Harassment and Workplace Surveillance.

Order your copy of the Employment Law Practical Handbook today on an obligation-free trial and put it to the test at your business. What do you have to lose?

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