National Employment Standards and the right to request flexibility

The National Employment Standards (NES) will come into effect in January 2010. It will provide 10 new minimum entitlements for all Australian workers. The NES are to replace the Australian Fair Pay and Conditions Standard (AFPCS) currently in force under the Workplace Relations Act 1996 (WR Act). One of the National Employment Standards will provide working parents with children under school age the right to request a flexible work arrangement.

A summary guide: The right to request flexibility

How to develop a flexible work policy

Create an effective process to evaluate flexible work proposals

Guide on the right to request flexibility

Provision

Section 65 of the Fair Work (FW) Act provides that an eligible employee has a right to request of their employer access to a flexible work arrangement. While such arrangements are not defined formally in the FW Act, examples are included in the “note” to the section, namely changes in work hours, patterns of work and location.

Who is eligible?

The National Employment Standards are minimum terms and conditions that apply to all employees. Under section 65(1) employees who are parents of (or care for) children under-school age, or a child under 18 who has a disability, may request a “change in working arrangements”.

The provision applies to both permanent and casual employees. In particular an employee must have completed 12 months continuous service before making this request, or if the employee is employed on a casual basis, the employee must be a long term casual and have an expectation of continued employment.

What does the provision require?

The request: The employee must make a request in writing demonstrating: (i) the reason for the change (i.e. how the requested change will assist the employee to care for their child); and (ii) the nature of the change.

The response: The employer must respond in writing within 21 days of the request. The response must identify whether the request is granted or refused, and if refused the response must detail the reasons why. These reasons must demonstrate that the refusal was made on “reasonable business grounds”.

What are reasonable business grounds?

The Standard does not define ‘reasonable business grounds’, however ‘reasonable’ grounds to refuse a flexible work request may include:

Costs
Inability to staff the change
Detrimental impact on quality or performance
Too little work when employee proposes to work / too much when they will be absent
Planned structural changes

An employer must provide evidence that it has taken conclusive steps to investigate the flexible work request or other alternative options and may not refuse the request on one ground/factor alone, such as ‘costs’.

Enforcement

The FW Act provides that all employers must comply with the National Employment Standards, including the provision that an employer provide reasons for accepting or refusing to grant a request for flexibility. The maximum penalty for non-compliance is AUS$6,600.

What should employers do to ensure compliance?

Ensure your organisation has an up-to-date flexible work policy that is clearly documented and communicated to all employees;
Make available a flexible work proposal ‘template’ or ‘form’ that provides clear instructions to employees and managers on how to plan, negotiate and implement a flexible work arrangement;
Be willing to trial a flexible work arrangement before refusing the employee’s request e.g. for 3 months - see our Flexible Work Proposal Toolkit;
Train managers on the benefits of flexible work, and what they can do to overcome barriers and implement a flexible work arrangement successfully.

For more information go to www.workplace.gov.au

or visit the NES information centre

How to develop a flexible work policy

A Workplace Flexibility Policy provides a framework for an organisation to express its commitment to flexibility and set expectations about rights and responsibilities.

Developing a flexible workplace policy needs good research and communication with employees to find out which practices will best suit the business.

Follow 5 key steps to develop your own

Flexible Work Proposal Toolkit

The Flexible Work Proposal Toolkit is a simple and convenient business case tool that enables employees and managers to research, negotiate and implement a flexible work arrangement.

It provides practical advice and tools to: