Flexible working arrangements

The National Employment Standards (NES) provide a right for certain employees to request flexible work arrangements from their employer until their child reaches school age. An employer can only refuse a request on reasonable business grounds.

 
Overview
 
The National Employment Standards (NES) provide a right for certain employees to request flexible work arrangements from their employer until their child reaches school age. An employer can only refuse a request on reasonable business grounds.
 
However, determining whether a business has reasonable grounds for refusing a request for flexible working arrangements is not subject to third-party involvement. In other words, an employee does not have access to a designated tribunal if the employer refuses the employee’s request.
 
Outline of entitlement
 
The entitlement to make a request for flexible working arrangements is provided in s65 of the Fair Work Act.
 
An employee who is a parent, or has responsibility for the care, of a child may request his or her employer for a change in working arrangements to assist the employee to care for the child if the child:
  • is under school age; or
  • is under 18 and has a disability.
The employee’s request must be in writing and set out details of the change sought and the reasons for the change.
 
The employer must give the employee a written response to the request within 21 days, stating whether the employer grants or refuses the request.
 
The employer may only refuse the request on reasonable business grounds. If the employer does refuse, then it must provide written reasons for the refusal.
Reasonable business grounds
 
The NES does not currently provide a definition of the phrase ‘reasonable business grounds’. However, factors that may be relevant could include the cost of accommodating the employee’s request, the employer’s ability to reorganise work arrangements and the business needs of the employer. These are also the types of factors generally contemplated in discrimination cases.
 
Flexible working arrangements
 
The NES notes that examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.
 
School age
 
The NES defines ‘school age’ as the age at which the child is required by a law of the State or Territory in which the child lives to start attending school.
 
Responsibility for the care of a child
 
The meaning of this phrase is not restricted to a person who may have a legal responsibility for the care of the child, but is intended to include various parent-like relationships such as guardianship and fostering arrangements.

 

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