Under the Fair Work Act (FW Act), certain employees have the right to request flexible working arrangements.
Eligible employees include those who:
- have parental or carer responsibilities;
- a disability;
- are 55 years or older; or
- are experiencing or providing care to someone experiencing family violence.
To be eligible to make a request, an employee must have worked with the employer for at least 12 months.
Since the recent introduction of a new clause in section 65 of the FW Act, any employer who mismanages or refuses a request without proper consideration, or fails to set out reasons for refusing a flexible work arrangement, can face the following penalties:
- up to $63,000 for companies; and
- up to $12,600 for individuals.
In the following steps, we demonstrate how you can approach requests for flexible work arrangements:
1 – Give yourself the right tools
- implement a flexible work arrangement policy;
- train your managers in their legal obligations; and
- set up technology that enables employees to work remotely.
2 – Assess a flexible work arrangement request
You should consider:
- the reason for the request and why the employee needs to make adjustments;
- whether the request is for a short-term or long-term arrangement;
- the key requirements of the employee’s position; and
- how the arrangement will affect the operation of the business.
Flexible work arrangements may include part-time work, job sharing, variable shift lengths or working hours, working from home, time in lieu or compressed working hours.
A request can only be refused on reasonable business grounds and these reasons must be detailed to the employee in writing within 21 days.
3 – Implement a flexible work arrangement
Prior to committing to an arrangement, you may wish to implement a 3-6 month trial period to see whether it works, and if it doesn’t, what adjustments can be made.
Any arrangement reached must be accurately documented in writing, so each party understands the terms of the agreement and where and how the work will be performed.
It should be stated if the arrangement is intended to be a permanent or temporary change.
If the change is temporary, the document should state that it is subject to the company’s business needs. If it is permanent, this should be recorded as a variation to the employee’s employment agreement.
4 – Manage a flexible work arrangement
Once an arrangement has been implemented, you should review it regularly, e.g. every 3-6 months.
If you need to change the arrangement due to business needs, changes should be communicated to the employee, and notice of them given. This should be recorded in writing. Where necessary, you should also record changes as a variation to the employee’s employment agreement.