In response to the ‘Secure Jobs, Better Pay’ Bill, it is about to become more challenging for employers to refuse employee requests for ‘Flexible Working Arrangements’, with increased employee opportunity and rights within the eligibility criteria and disputes process. Although these specific changes do not take effect until June 2023, there is benefit in employers knowing about and preparing for this now.
Specifically, the changes will see an increase in employee eligibility to apply for ‘Flexible Working Arrangements’, with the addition of pregnancy as an eligible criterion. It further aims to increase employee capacity to dispute an employer’s denial of a request, giving employees the opportunity for the decision to be reviewed by the Fair Work Commission, who will have the capacity to ORDER the employer to grant the working arrangements if they find it ‘a reasonable request’.
Eligibility
To recap for those employers who are not aware, flexible working arrangement eligibility extends to:
- A parent who cares for an infant or school aged child
- A carer as defined within the Carer Recognition Act 2010
- Individuals with a disability
- Individuals 55 years or older
- Anyone experiencing domestic or family violence and/or caring for someone experiencing it
- Pregnancy (June 2023)
Denying a Request
To refuse a request an employer needs to have grounds for, ‘reasonable refusal’. Below we have given some examples of situations where this may be applicable:
- The conditions within some Awards will make it difficult to accept special requests for some employees in consideration of work hours. Such as, the request to work a short period of a morning with a 6-hour gap before working additional evening hours.
- The adjustment of requested hours will see an increased employer cost in response to applicable penalty and overtime rates. Such as, the request to work from home after 6pm and within such accruing additional penalty rate costs to the employer.
- The employee working from home has the potential to disrupt the working arrangements of other employees. For example, three employees have Mondays off and an employee has requested to work flexibly from home on this day due to difficulties acquiring care for an infant. It would not be reasonable to have four employees out of the office on the same day.
- It is not safe or possible to have the employee’s role undertaken within a working from home environment.
- Only a portion of an employee’s role can be conducted from a flexible working environment. This may not be reasonable to the costing and productivity of the employer, as additional hiring and/or the transferring of duties to another employee is required to see the fulfillment of the employees role.
To reasonably justify a denial request, an employer needs to evidence that the adjustment would see significant loss of cost, efficiency, productivity, customer service, or is deemed impractical in consideration of other employee working arrangements and current employee role fulfillment. Ultimately, employers need to ensure that they have fairly reviewed an employee’s request for flexible working arrangements and need to support any denial of requests with adequate evidence. Where possible Fair Work encourage employers and employees to discuss requests and if not achievable in full, to negotiate arrangements that see both parties satisfied.
Within approving a ‘Flexible Working Arrangement’ request, consideration needs to be given to the conditions of the intended working environment and employee safety. This will require regular WHS audits and the implementing of strategies to upkeep communication and positive psychosocial health. For more information on how to keep employees safe at home, review our ‘Working From Home Checklist’.
If you are finding it difficult to respond to an employee request, Assurance HR Management can equip you with the correct documentation and knowledge, do it with you by talking you through the associated process, or do it for you by addressing employee requests on your behalf and assessing how ‘reasonable’ the request is in consideration of working from home provisions, the ability to split hours, rosters, costing etc. Call us today on 1800 577 515 to discuss how we can best support you.
