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Work from Home and Flexible Working Arrangements: What are an Employer’s Obligations?

Work from Home and Flexible Working Arrangements: What are an Employer’s Obligations?

Work from Home and Flexible Working Arrangements – potentially 20, 15 or even 10 years ago, this was seldom used.  However, as part of the ever-changing workplace and evolving workforce, Flexible Working Arrangements seem to be here to stay.

What are Flexible Working Arrangements?

Standard working arrangements such as working from an established office, working 5 days a week or during office hours have seen a shift – with an overwhelming majority of workers wanting some flexibility.

This flexibility can take many forms but the usual ones include:

  • time off in lieu (TOIL)
  • job sharing
  • roster flexibility
  • changing from full-time to either part-time or casual work
  • the provision of or the purchasing of extra paid leave
  • start and finish times flexibility
  • compressed hours or days such as 3 or 4 day weeks or 9 day fortnights
  • work from home
  • remote work
  • rostered days off (RDO)
  • transitional work hours after a return from injury, illness or parental or maternity leave

Can anyone request a Flexible Working Arrangement? Does this create a Workplace Right?

Any employee can request a Flexible Working Arrangement, but there are only certain types of employees who have a workplace right and therefore a legal entitlement to the request.

In practical terms, if there is a workplace right, this ensures there is a proper way to request and also respond to the request.

Under s 65 of the Fair Work Act 2009 (Cth), to create a workplace right and therefore a legal entitlement to the request, an employee must:

  • be a permanent employee for at least 12 months: or
  • (and controversially) a regular and systematic casual employee who has worked for the employer for at least 12 months and has a reasonable expectation of continuing to do so.

There is a second limb to this, and that the request must be because the employee is:

  • pregnant
  • a parent of, or has responsibility for the care of, a child who is school age or younger
  • a carer
  • a person with a disability
  • aged 55 or older
  • experiencing family and domestic violence, or
  • providing care or support to an immediate family member, or someone they live with, because they are experiencing family and domestic violence.

If an employee reaches both these criteria, they will have a legal entitlement to make a flexible working arrangement request and creates a workplace right to do so – which means (amongst other things) an Employer is required to provide a response.

What are the legal requirements to respond to the request?

There are specific rules for responding and these include the following:

  • a response must be in writing
  • it must be provided within 21 days of the request
  • the response must say there is an approval or refusal (or proposed alternative arrangement)
  • If refused, it must only be done so on reasonable business grounds

What are reasonable business grounds?

Some examples include:

  • agreeing to the request would be too costly for the employer;
  • there is no capacity to change the working arrangements of other employees to accommodate the request;
  • it would be impractical to change the working arrangements of other employees or recruit new employees to accommodate the request;
  • agreeing to the request would be likely to result in a significant loss in efficiency or productivity;
  • agreeing to the request would be likely to have a significant negative impact on customer service.

In addition, other steps need to be taken, include:

  • discussing the request with the employee
  • genuinely trying to reach an agreement with the employee for alternative arrangements, and
  • considering the consequences for the employee of refusing the request.

What is the liability if an Employer does not respond accordingly?

Responding incorrectly (or not responding at all) or simply not taking a request seriously opens up a number of liability claims including:

  • General Protections:
  • Unfair Dismissal;
  • Discrimination;
  • Unlawful Dismissal;
  • Breach of Contract;
  • Dispute Application;
  • Breach of the Fair Work Act 2009 (Cth).

Our Employment Lawyers at South Geldard Lawyers have essential expertise in advising on flexible working arrangements and work from home. Feel free to reach out on 07 4936 9100 or via email to Jonathan Mamaril, Director at jmamaril@southgeldard.com.au.  All Employers receive an obligation-free consultation.