New right to request flexibility
Juliet Bourke, partner, Aequus partners, examines what an employee’s right to request flexibility under the National Employment Standards means for employers.
The Fair Work Act 2009 (FW Act) includes ten National Employment Standards (NES), one of which gives(some) employees the right to request a flexible work arrangement. Between now and 1 January 2010 (when the “right to request” commences), employers have a window of opportunity to get on top of this significant change to the way in which flexible work practices will be negotiated at the workplace. Based on similar legislation overseas (eg the United Kingdom) Aequus Partners predicts an increase in requests for flexibility, not only by those directly covered by the Standard. This article discusses the terms of the Standard and how employers might ensure compliance. In essence, compliance will be about employers demonstrating greater transparency, consistency and thoughtfulness in decision-making about flexible work practices.
Section 65 FW Act provides that an eligible employee has a right to request of their employer access to a flexible work arrangement.
Who is eligible?
The NES are minimum terms and conditions that apply to all national system employees (eg an employee employed by a corporation or by the Federal Government).
Under s 65(1) employees who are parents of (or care for) children under-school age, or a child under 18 who has a disability, may request a “change in working arrangements”.
The provision applies to both permanent and casual employees. In particular, an employee must have completed 12 months continuous service before making this request, or if the employee is employed on a “casual” basis, the employee must be a long term-casual and have an expectation of continued employment.
What does the provision require?
The request: The employee must make a request in writing demonstrating:
•the reason for the change (ie how the requested change will assist the employee to care for their child)
•the nature of the change.
The response: The employer must respond in writing within 21 days of the request. The response must identify whether the request is granted or refused, and if refused the response must detail the reasons why. These reasons must demonstrate that the refusal was made on “reasonable business grounds”.
What are reasonable business grounds?
The Standard does not define “reasonable business grounds”, nevertheless a body of Australian case law on family/carers’ responsibilities discrimination suggests that relevant issues will include:
• the nature of the role
• the impact of the request on business/team operations
• associated costs as well as the benefit to the individual and the business (eg turnover and productivity).
The penalty for non-compliance with the Standard’s process is $6,600. There is no capacity, however, for a review of the substance of the employer’s decision, ie that it met the “reasonable business grounds” test (this is specifically excluded by s 44(2)). The Standard is thus designed to stimulate a conversation between an employee and employer, and a mechanism for transparent and consistent decision-making, but not litigation. Enforcement will be indirect, ie through adverse publicity or a claim of family/carers’ responsibilities discrimination using the written response.
What should employers do to ensure compliance?
Given the likelihood that employers will be held to account for their decisions in relation to an employee’s request for flexibility, a prudent employers would educate their managers about the factors to be taken into account when determining such a request. A checklist of factors would include:
• whether a work/family policy exists within the organisation
• whether a similar request has been granted elsewhere in the business
• the nature of the role and key performance indicators
• options for change (eg including modifications to the request)
• the impact of the change on the team/business unit
• the cost of the change vs the cost of not making the requested change (eg turnover).
In the spirit of evidence-based decision-making, consideration of whether there are “reasonable business grounds” to accept or reject a request might also prompt an employer to introduce the requested change on a trial basis, ie to determine the practicality of the requested change. Finally, in order to ensure that the employer’s assessment is perceived as reasonable, a prudent employer would engage in a consultation process with the employee which demonstrates an open-mind towards the employee’s needs and encourages mutuality. Clearly, just saying “No” to a request because it has never been done before will not be sufficient to meet the spirit of the legislation.
Aequus Partners has developed a toolkit to help employers comply with the “right to request flexibility” Standard.
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