Right to Request Flexible Working Arrangements

The Rudd government's National Employment Standards (NES) establish a procedure for parents of children under school age, who have completed at least 12 months of continuous service with their employer, to request flexible working arrangements. Such arrangements may relate to the location of work, or to the number or pattern of work hours.

The NES procedure is as follows:

1. The employee must set out in writing the change sought and the reasons for the change.
2. The employer must respond to the request in writing within 21 days, stating whether the request has been approved.
3. If the employer refuses the request, the employer must include in the response the reasons for refusal. Employers must bear in mind that a refusal will only be legitimate if it is made on 'reasonable business grounds'.

The NES does not venture to define 'reasonable business grounds', nevertheless a sensible reading of the words would tend towards the conclusion that mere inconvenience, as opposed to a measurable negative impact on business, would not be sufficient. It is certain that the meaning of these three words will be thrashed out and clarified in the months and years following the introduction of the NES.

What does it mean for employers?

Many employers will already be accustomed to informal requests for flexible working arrangements, and many would know that an unreasonable refusal of a request could, in certain circumstances, lead to a discrimination action. The new legislation merely formalises and clarifies the procedures and obligations with respect to such requests.

In view of the above, employers should not be overly alarmed about this seemingly new employee right. Nevertheless, the new legislative standard will undoubtedly lead to an increase in employees requesting flexible working arrangements. Employers should properly consider each request, and not issue a refusal unless and until they are confident that the refusal can be justified and explained.

Please contact Richard Thompson on +61 3 9612 7306 or Joshua Strong +61 3 9612 7323 if you have any workplace queries.