How to deal with an employee's request to work flexibly

One of the less publicised results of the AHRC Report into pregnancy and return to work* is that a key challenge faced by employers is their confusion and uncertainty about their legal obligations regarding mothers returning to work. This blog focuses on a mother’s right to request to work flexibly pursuant to the Fair Work Act.

 Photography / Cate Sevilla

Photography / Cate Sevilla

Generally speaking, an employee with 12 months’ service who is a parent of a child under school age can request changes to their working arrangements as a result of their parental responsibilities. An employer can only refuse a written request on “reasonable business grounds” and must respond to any such request in writing within 21 days.

There is probably no use in reiterating the examples of “reasonable business grounds” which are set out in the Fair Work Act because the list is non-exhaustive and each set of facts will need to be considered on their own merits in any event. 

Instead, we thought we would set out a basic checklist for employers to follow in the event an employee requests to work flexibly on account of their parental responsibilities:

  • Review any industrial instruments, contracts and policies – what do they say about flexible working arrangements (if anything)?
  • Workshop and investigate an employee’s proposal to work flexibly. Consider things like:
  • level of autonomy and independence of role
  • nature of work and duties
  • any requirements to attend at certain times or on certain days
  • immediacy/urgency of job functions
  • backfill/jobshare required - at what cost?
  • overlap, training and handovers
  • arrangements for working from home (technology, policies, WHS)
  • success (or not) of any current arrangements re: work hours
  • Keep records of the above analysis
  • Clearly communicate the results of the above analysis to the employee
  • Ensure you follow through with your actions (if you say it’s too expensive to have an off-site resource, make sure you bring the function in-house)
  • Enshrine any flexible work arrangements in a written flexible work agreement which clearly sets out your right to monitor and amend the arrangement at any time due to operational reasons
  • If arrangements aren’t working, review and amend them (don’t let them go on for too long!)
  • Be aware that if you handle an employee’s request badly, you may find you’ll be facing legal action by way of a dispute at the FWC (if the employee is covered by an Award or enterprise agreement), an adverse action claim, discrimination claim or even a claim for constructive dismissal in certain circumstances

This checklist would apply equally to other employees who are eligible to request flexible working arrangements under the Fair Work Act (i.e. employees who are aged over 55, are “carers”, are disabled or are experiencing/supporting a family member who is experiencing, domestic violence).  

We know that it can sometimes be difficult balancing the human rights issues and the business priorities, so contact THE WORKPLACE if you’re not sure of the answers.

*Supporting Working Parents: Pregnancy and Return to Work, National Review-Report 2014, Australian Human Rights Commission, 2014

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