Most employers are familiar with an employee’s right to request a flexible return to work when coming back from maternity leave BUT there is a whole array of workplace rights embraced under Section 65 of the Fair Work Act that Federal employers may be unfamiliar with.
State based employers can heave a sigh of relief that this legislation does not affect them and so is one less potential complication in an increasingly compliance heavy workplace.
So what does this mean for the employer and what rights does the employer actually have?
In essence Section 65 applies to employees and their right to request flexible working arrangements (eg working reduced hours/different hours /different days and so on) that revolve around certain conditions. These conditions include:
- Any employee over the age of 55;
- Any employee with school aged children who is a parent or has the responsibility for their care;
- Any employee with a disabled member in their immediate family for whom they provide care;
- Any employee returning from maternity leave;
- Any employee who themselves have a disability;
- Any employee who is experiencing violence from a member of the employee’s family;
- Any employee who provides care or support to a member of the employee’s immediate family who is experiencing violence from a member of the employee’s family.
A permanent employee must have completed a minimum of 12 months continuous service before making the request and if a casual, must be a ‘long term’ casual with a reasonable expectation of ongoing employment.
Any such request must be in writing and set out the reasons for the request, whereupon an employer has 21 days to respond in writing. Employers may refuse on ‘reasonable business grounds’ which, in essence, would mean changes that
- are too costly;
- have no capacity to change the arrangements to accommodate the requested changes;
- are completely impractical, require changes to the working arrangements for other employees or require the recruitment of new employees; or
- result in significant loss or have a significant negative impact on customer service
You can see from the above that any refusal, even where reasonable and based on the above grounds may well lead to a feeling of disgruntlement on the part of the employee, particularly with regard to some of the scenarios above where violence or negative impact on families is occurring. This is compounded by a widely held belief amongst some employees that the right to ‘request’ is actually a right to ‘demand’.
It may be that employers will need to consider proactive steps so that they are prepared in the event of such a request being given to them. This approach would also contemplate a clear Policy on this matter well before any actual requests are forthcoming and would then provide clear information up front to employees as to what can and cannot be accommodated in a workplace.
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