Request for Flex­i­ble Work­ing Arrangements 

In Brief

When com­pa­nies receive employ­ee requests for flex­i­ble work­ing arrange­ments, under­stand­ing if they can accom­mo­date their employ­ee’s need for flex­i­bil­i­ty, whilst still main­tain­ing their busi­ness and client inter­ests can be a dif­fi­cult bal­anc­ing act.

In a busi­ness envi­ron­ment where there are com­pet­ing inter­ests between employ­ers, employ­ees and clients it’s dif­fi­cult to strike the right bal­ance in order to pre­serve pro­duc­tiv­i­ty and prof­itabil­i­ty, whilst still meet­ing the needs of your employ­ees and clients. This very bal­anc­ing act may arise where an employ­ee requests flex­i­ble work­ing arrange­ments in the work­place. Under­stand­ing how, when and if you can accom­mo­date your employ­ee’s need for flex­i­bil­i­ty whilst still main­tain­ing your busi­ness and client inter­ests, is an impor­tant fac­tor in the bal­anc­ing act.

The Nation­al Employ­ment Stan­dards pro­vide employ­ees with a right to ​‘request’ flex­i­ble work­ing arrange­ments in regard to hours, pat­terns and loca­tions of work. The request may be made in writ­ing by an employ­ee who has com­plet­ed at least 12 months con­tin­u­ous ser­vice with the employ­er and is either a car­er, has a dis­abil­i­ty, is over 55, is expe­ri­enc­ing domes­tic vio­lence or needs to care for some­one who is. 

The right to request flex­i­ble work­ing arrange­ments is just that — a right to request. It is not an enti­tle­ment to have flex­i­ble work­ing prac­tices pro­vid­ed when request­ed. While it is impor­tant to con­sid­er and dis­cuss alter­na­tive arrange­ments with an employ­ee, it is also accept­able for an employ­er to refuse the request based on the rea­son­able needs of their business.

Rea­son­able busi­ness grounds upon which an employ­er may refuse a request can include:

• The cost of imple­ment­ing the arrange­ments would be unreasonable;
• The effect on oth­er employ­ees and their work­ing arrange­ments; and
• The arrange­ments would result in a sig­nif­i­cant loss of productivity.

In a case heard by the Equal Oppor­tu­ni­ties Tri­bunal in South Aus­tralia, it was decid­ed that remov­ing the flex­i­ble work­ing arrange­ments put in place for an employ­ee to com­mence work at 10am rather than 9am to care for her elder­ly far­ther was not an infringe­ment of the employ­ee’s rights nor was it a case of unfavourable treat­ment or bul­ly­ing. The Tri­bunal accept­ed that the employ­er had tried to accom­mo­date the employ­ee over a num­ber of years but the arrange­ments had ulti­mate­ly result­ed in dif­fi­cul­ty and increased stress and ten­sion amongst the oth­er staff.

Where a request for flex­i­ble work­ing arrange­ments is made the employ­er must advise the employ­ee of their deci­sion in writ­ing with­in 21 days of the request. The employ­er does not need to choose between accept­ing or reject­ing the request put for­ward by the employ­ee. Instead, the employ­er may choose to nego­ti­ate and dis­cuss alter­na­tive arrange­ments, if any, that could be made to accom­mo­date the employ­ee and the busi­ness before mak­ing their decision.