Flexible working arrangements are becoming an increasingly common part of Australian workplaces.
For many employees, flexibility can make an important difference when balancing work with caring responsibilities, pregnancy, disability, family circumstances or other significant personal needs.
For employers, however, flexibility also needs to be workable.
That is why flexible working arrangements should never simply be viewed as an employee deciding when, where or how they will work. There is a process that needs to be followed, particularly where an employee is making a formal request under the Fair Work Act 2009.
At Assurance HR Management, we have developed a practical Flexible Working Arrangements Employee Guide and Request Form to help employers and employees understand that process.
A right to request is not an automatic right to approval
One of the biggest areas of misunderstanding around flexible working arrangements is the difference between having the right to make a request and having an automatic right to the arrangement requested.
Under the National Employment Standards, certain eligible employees can formally request a change to their working arrangements.
Depending on the circumstances, this might include changing:
- hours of work;
- start and finishing times;
- days of work;
- work patterns;
- rosters;
- work location; or
- arrangements for working from home.
However, the fact that an employee is eligible to make a request does not mean the employer must automatically approve exactly what has been requested.
The employer must properly consider the request, discuss it with the employee and, where necessary, consider whether an alternative arrangement could reasonably accommodate the employee’s circumstances.
What flexible work is not
Flexible working arrangements can sometimes become difficult when they are treated as an informal entitlement rather than an agreed workplace arrangement.
Flexible work does not automatically mean:
- choosing your own hours;
- deciding which days you attend the workplace;
- working from home whenever it suits;
- changing an existing roster without approval;
- being unavailable during normal working hours;
- replacing annual leave, personal leave or carer’s leave;
- reducing normal performance expectations; or
- commencing a proposed arrangement simply because a request has been submitted.
Until a new arrangement has been agreed, an employee’s existing working arrangements continue to apply.
That point alone can prevent significant misunderstanding.
The request needs to be clear
A formal flexible working request should not simply say:
“I would like to work from home.”
An employer needs enough information to genuinely assess whether the arrangement is workable.
A properly structured request should identify matters such as:
- the employee’s current working arrangements;
- exactly what change is being requested;
- proposed working days;
- proposed start and finishing times;
- proposed work location;
- when the arrangement would commence;
- whether it is temporary or ongoing;
- why the arrangement is being requested;
- how the employee’s duties will continue to be performed;
- how customers, clients or other workers may be affected;
- how meetings and workplace attendance will be managed; and
- what alternative arrangements the employee may be prepared to consider.
The clearer the request, the more meaningful the consultation process can be.
Working from home requires additional consideration
Working from home is one of the most common forms of flexible work, but it also creates additional considerations for employers.
Employees working remotely are still working.
They remain responsible for:
- performing their normal duties;
- being available during agreed working hours;
- attending required meetings;
- meeting performance standards;
- complying with workplace policies;
- protecting confidential information;
- complying with information-security requirements; and
- maintaining a safe working environment.
Employers also need to consider whether the proposed home-working arrangement is appropriate from a work health and safety perspective.
A flexible arrangement should therefore address not only where an employee will work, but also how the work will actually be performed.
Employers must genuinely consider the request
Where the statutory flexible working provisions apply, an employer cannot simply dismiss a request without proper consideration.
The process should involve consultation with the employee.
The employer should consider matters such as:
- the requirements of the employee’s role;
- operational coverage;
- customer or client requirements;
- supervision;
- productivity;
- efficiency;
- costs;
- the impact on other employees;
- whether another employee would need to change their hours;
- whether additional workers would need to be engaged;
- safety;
- confidentiality; and
- whether an alternative arrangement may be available.
Where an employer intends to refuse an eligible statutory request, the employer must first discuss the request with the employee and genuinely attempt to reach an agreement about possible alternative arrangements.
Reasonable business grounds still matter
There will be circumstances where a particular request simply cannot reasonably be accommodated.
The Fair Work Act recognises this.
Depending on the circumstances, reasonable business grounds may include situations where the proposed arrangement would:
- be too costly;
- require impractical changes to other employees’ working arrangements;
- require additional workers to be engaged;
- create a significant loss of efficiency;
- create a significant loss of productivity; or
- have a significant negative impact on customer or client service.
The important point is that each request needs to be considered individually.
The fact that one employee has been approved to work flexibly does not automatically mean every other employee can be given the same arrangement.
Different jobs, different teams and different operational circumstances can produce different outcomes.
The 21-day requirement
Where an eligible employee makes a formal flexible working request under the National Employment Standards, the employer must provide a written response within 21 days.
That response should clearly confirm whether:
- the request is approved;
- an alternative arrangement has been agreed; or
- the request is refused.
Where the request is refused, the employer needs to explain the reasonable business grounds relied upon and how those grounds apply to the particular request.
This is where having a documented process becomes especially important.
Trial arrangements can be a useful option
Not every flexible working request needs to result in an immediate permanent arrangement.
In some cases, a trial period can be a practical middle ground.
For example, an employee may request two work-from-home days each week, but the employer may agree to trial one day per week for three months.
The trial period can then be reviewed against factors including:
- productivity;
- availability;
- customer service;
- team impact;
- supervision;
- workplace attendance; and
- whether the arrangement remains operationally sustainable.
A properly documented trial can allow both parties to test an arrangement without creating unnecessary uncertainty.
Put the process in writing
Flexible working arrangements are much easier to manage when there is a clear written process.
That is why AHR has prepared two practical resources for employers.
Flexible Working Arrangements Employee Guide
Our Employee Guide explains:
- what flexible working arrangements are;
- what they are not;
- who may have a statutory right to make a request;
- the difference between requesting and receiving approval;
- the process an employee must follow;
- what information should be provided;
- how consultation should occur;
- reasonable business grounds;
- working-from-home expectations;
- trial arrangements; and
- how disputes may be managed.
Flexible Working Arrangement Request Form
We have also developed a detailed request and assessment form which helps employers properly document the entire process.
The form captures:
- employee details;
- current working arrangements;
- the exact arrangement requested;
- commencement and review dates;
- reasons for the request;
- how duties will be performed;
- operational impacts;
- proposed solutions;
- alternative arrangements;
- working-from-home considerations;
- consultation records;
- employer assessment;
- reasonable business grounds;
- trial arrangements; and
- the final decision.
Used together, the guide and form create a structured process rather than relying on informal emails, conversations or assumptions.
Need the Guide and Request Form?
Assurance HR Management can provide employers with our Flexible Working Arrangements Employee Guide and Request Form for use within their workplace.
We can also assist employers to:
- assess individual flexible working requests;
- conduct the required consultation process;
- identify reasonable alternatives;
- prepare written approvals;
- prepare refusal responses;
- develop working-from-home arrangements;
- review existing flexible work practices; and
- implement a workplace flexible working policy.
Getting the process right protects both the employee and the employer.
It also ensures flexible work remains what it should be: an arrangement that genuinely assists the employee while remaining workable for the business.
Need assistance managing flexible working arrangements in your workplace?
Contact Assurance HR Management – The Workplace Problem Solvers!
