The demand for employers to provide flexible workplaces has become increasingly evident following the COVID-19 pandemic so as an employer, it’s important to understand the types of requests for flexible work that employees may put through, so you can be equipped to manage such requests.
There are a variety of reasons as to why employees may request flexible working conditions such as the desire to have better work life or they may have caring responsibilities. Flexible work can come in many forms. Changing hours of work or being able to work from home, are two of the most common examples.
The Gartner 2021 Digital Worker Experience Survey found 43% of employees who responded stated flexibility in working hours allowed them to increase productivity in the workplace, and 30% of employees reported that reduced or zero travel time allowed them to be more productive.
Any employee can make an informal request for flexibility in their working arrangements at any time, which employers are generally free to accept or decline.
However, the Fair Work Act, also provides for a formal flexible work mechanism for certain employees with over 12 months service. When this process is used employers can only refuse requests on “reasonable business grounds”.
Modern awards and enterprise agreements also allow for “individual flexibility arrangements”.
We explain both concepts below
Flexible working arrangements under the Fair Work Act
Certain employees are entitled to request flexible working arrangements if they have been with the same employer for at least 12 months and meet the requirements set out under section 65 of the Act.
Casual employees also have the benefit of being able to request flexible working arrangements but they are required to have been a regular and systematic employee for at least 12 months, with a reasonable expectation of them continuing such work on the same basis.
To apply for flexible working arrangements under the Fair Work Act, the employee must meet any of the following circumstances:
- They are the parent, or have responsibility for the care, of a child who is school aged or younger
- They are a carer (under the Carer Recognition Act 2010)
- They have a disability
- They are 55 or older
- They are experiencing family or domestic violence, or
- They provide care or support to a member of their household or immediate family who requires care and support because of family or domestic violence.
This request must also be provided in writing to the employer and specify the nature of the requested change and the reasoning for the request.
Let’s now look at what happens on the flip side from the employer’s perspective.
Once a flexible working arrangement request has been received, employers are required to firstly raise the request with the employee to try to reach an agreement about changes to their working conditions through a consultation meeting. As part of the decision-making process, there should be consideration of:
- the needs of the employee
- the impact on the employee if the request cannot be facilitated
- any reasonable business grounds for denying the request
There is also the obligation to provide a written response to the employee within 21 days from receipt of the request to confirm the outcome of the business’ decision. Requests can only be refused on reasonable business grounds and where the request has been refused, the reason must be stipulated.
This leads us to the question of what are reasonable business grounds for refusing requests?
Although there are a multitude of reasons as to why a request for flexible work may be denied, it could be that the business is not able to afford to approve to the request as it may be too costly, or that such a request may be impractical as it would require the business to hire additional staff, or that such a request would be detrimental to the business’ productivity/service delivery.
If you receive a request for flexible working arrangements from an employee, please contact us if you need help in understanding your obligations or preparing a response to the employee.
Individual flexibility arrangements
For employees who are covered by modern awards, flexibility in the workplace can also be in the form of individual flexibility arrangements (IFA). These are an additional mechanism which applies alongside an employee’s ability to make a flexible work request under the Fair Work Act 2009.
IFAs are available to all employees covered by a modern award or enterprise agreement. They do not require an employee to have been employed for at least 12 months and employees do not need a “special” reason to enter into an IFA.
An IFA is essentially a written agreement entered into by an employer and employee to vary the effect of certain clauses in the award/enterprise agreement, to better suit the needs of both parties.
For award-covered employees, an IFA can generally be used to vary the following provisions of an award:
- arrangements for when work is performed
- overtime rates
- penalty rates
- leave loading
For agreement-covered employees, the parameters for what can be varied will be set out in the applicable agreement.
IFAs can be made any time following when an employee has commenced employment and must be genuinely entered into by agreement between an employer and employee. It’s important to note that employees ]are protected by law should they refuse to enter into such an arrangement. One of the key requirements of an IFA is that an employee must be better off overall with the agreement effective, as opposed to the agreement not existing i.e., it must pass the better off over test (BOOT). The benefit provided to the employee as a result of an IFA may be a financial or non-financial benefit. Therefore, assessment of IFAs and whether it passes the BOOT would need to be assessed case by case. For example, an Award may stipulate ordinary hours are to be performed from 8am-5pm. However, an individual employee may enter into an IFA to vary that their ordinary hours are to be worked from 6am-3pm as it suits their lifestyle better and allows them to do school pick-ups.
Furthermore, if an IFA is in place, it must be stipulated in writing, signed by both parties and a record of this must be kept by the business and a copy is to be provided to the employee. As IFAs must pass the BOOT, and aren’t subject to approval by Fair Work, we recommend entering into such arrangements cautiously – where there is doubt as to whether the terms pass the BOOT, it is recommended to seek our advice.
Flexibility in the workplace can be one of the key drivers in promoting productivity and is perceived as a highly valued benefit from employees.
By offering flexibility in the workplace, this can not only be an effective tool to attract talent but also incentivise current employees. In addition to the formal pathways employees can take to request flexible work, employers can also provide additional flexible work benefits on their own initiative by outlining this in an internal workplace policy.
If you require assistance with any matter relating to flexible work practices, please contact Employment Innovations today!
About HR Connect
HR Connect is one of Australia’s leading providers of HR and workplace safety advice service, designed to help small business owners make confident and compliant business decisions.
The information provided in these blog articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact HR Connect for advice.