The right to request flex­i­ble work­ing arrange­ments fol­low­ing a peri­od of parental leave

Employ­ers should be aware that employ­ees have the right to request a change in work­ing arrange­ments to assist the employ­ee in car­ing for a child. Such a request is often made while an employ­ee is on parental leave and is often a request to return to work in a part time capac­i­ty. The employ­er may refuse such a request on rea­son­able busi­ness grounds.

The ​“right to request” (as it is called) is enshrined in the Nation­al Employ­ment Stan­dards con­tained in the new Fair Work Act. It is avail­able to employ­ees who are par­ents and who have been employed for over 12 months. It may be made in respect of a child:

• under school age; or
• who is under 18 and has a disability.

The request must be in writ­ing and must set out the details for the change sought and the rea­sons for the change.

Long term casu­als also have the right to request such arrangements.

What the employ­er must do if it receives a request

With­in 21 days the employ­er must give the employ­ee a writ­ten response to the request stat­ing whether the employ­ee grants or refus­es the request.

If the employ­er decides to refuse the request, the writ­ten response must include details of the rea­sons for the refusal.

Employ­ers should con­sid­er requests on a case by case basis. Fun­da­men­tal to the Employer’s con­sid­er­a­tion will be what exact­ly the leg­is­la­tion means by ​“a change in work­ing arrange­ments” and also what jus­ti­fies a refusal on ​“rea­son­able busi­ness grounds”.

What is meant by ​“a change in work­ing arrangements”?

The explana­to­ry mem­o­ran­dum to the Fair Work Act states that exam­ples of changes in work­ing arrange­ments include changes in hours of work, changes in pat­terns of work and changes in loca­tion of work.

Accord­ing­ly there is an argu­ment that a change in work­ing arrange­ments does not extend to the employ­ee chang­ing from a full time posi­tion to a part time position.

What is meant by ​“rea­son­able busi­ness grounds”?

The explana­to­ry mem­o­ran­dum to the Fair Work Act states that the rea­son­able­ness of the grounds is a mat­ter to be assessed in the cir­cum­stances that apply at the time the request is made. Rea­sons for refusal may include:

• The effect on the work­place and the employer’s business 
• The inabil­i­ty to organ­ise work among exist­ing staff
• The inabil­i­ty to recruit a replace­ment employee

Escape clause for employers

The Fair Work Act states that no order can be made under the Fair Work Act against the Employ­er sim­ply for refus­ing the request on rea­son­able busi­ness grounds.

How­ev­er, the employ­er still needs to have com­plied with its oblig­a­tions to respond to the request with­in 21 days and if the request is refused, to give rea­sons for the refusal.

Dis­crim­i­na­tion law also needs to be considered

Despite the above escape claus­es, the law does not sim­ply allow a carte blanche for Employ­ers to refuse a requests on rea­son­able busi­ness grounds.

A female employ­ee whose request has been refused may seek orders under the Sex Dis­crim­i­na­tion Act.

In a series of Fed­er­al Court cas­es, women who have encoun­tered dif­fi­cul­ties when seek­ing part time employ­ment after return­ing to work from mater­ni­ty leave have suc­cess­ful­ly argued that refusal to allow part time work has the effect of dis­ad­van­tag­ing women.

Accord­ing­ly, where a request is to be refused on rea­son­able busi­ness grounds, employ­ers should seek legal advice as to whether dis­crim­i­na­tion law will apply in the spe­cif­ic circumstances.

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