Flexible Work Arrangements: How to Navigate Applications for Employee Flexibility

A recent ruling by the Fair Work Commission (FWC) could increase access to flexible work conditions for employees, requiring a new approach for all employers engaging workers under a modern award.

From the beginning of December 2018, employers are required to make a sufficient attempt to reach an agreement with a staff member requesting workplace flexibility. Flexible work arrangement applications can only be denied if the employer has a suitable reason.

Eligible employees are those covered under a modern award on a permanent basis. If they have been employed for 12 months or longer, an employee can make a request if they:

  • Are the parent, or have responsibility for the care, of a child who is school aged or younger
  • Are a carer (under the Carer Recognition Act 2010)
  • Have a disability
  • Are 55 or older
  • Are experiencing family or domestic violence, or
  • Provide care or support to a member of their household or immediate family who requires support because of family or domestic violence.

Casual employees can also make an application, so long as they have been employed for more than 12 months and on the understanding of a ‘reasonable expectation of continuing work with the employer on a regular and systematic basis’.

According to the Fair Work Commission, flexible work arrangements are defined as changes to hours of work, patterns of work (including split shifts and job sharing) and work locations (e.g working from home). While there has traditionally been a culture of ‘flexism’, data shows that companies that embrace flexibility are better placed to attract and retain talent, and enjoy higher productivity as a result.

The biggest change to previous rulings is that an employer must consider the application and make reasonable attempts to come to an agreement, rather than dismissing the application at the outset. Where flexible working arrangements can not be accommodated, the employer should outline the reasons why the application cannot be granted and, if applicable, outline ways in which they could accommodate flexibility. Claim rejections need to be advised within 21 days of the application being lodged.

According to Andrew Jewel, principal lawyer with McDonald Murlholme, a claim could be rejected where flexibility would negatively impact on business operations.

“It might be reasonable for an employer to reject a request for flexible working arrangements where an employee has a client-facing role and the business is open at a specific period. In that instance, it may not be reasonable to allow later start and finish times.”

While the new rules represent a change to the Fair Work Act (2009), The Lucas Group Principal Geoff Lucas cautions that workplace flexibility it not a new concept under the legislation.

“The changes in regards to workplace flexibility are more of an affirmation of what was already in place, rather than a specific change.”

“There are circumstances where flexibility isn’t going to work for a business, for example it’s virtually impossible to change milking times in a dairy.”

“But, I have seen some examples where flexibility has had positive outcomes for both the employer and employees. I’ve seen packing sheds which have changed work times for employees so they are able to do the school run. This means they become an employer of choice for locals, employee retention improves and productivity remains strong.”

“Many administrative and desk bound jobs may also attract a degree of flexibility, including flexible work hours and the ability to work remotely or from home.”

Mr Lucas urges employers to familiarise themselves with the Fair Work Act in order to understand the protocols involved with assessing flexible work applications.

“Don’t panic. Clarify the changes and, where possible, find a solution that benefits both the business and its staff.”

For more information, view the Fair Work Act, Subsection 65.

Sources: HRM

Image from Wikicommons under a CC2.0 licence

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