2 November 2014
Sina Mostafavi, Senior Associate
Like many countries worldwide, Australia has in place a legislative scheme to provide workers the ability to request exible working arrangements to accommodate their family or caring responsibilities (the “Flexible Work Scheme”).
How did we get here?
In 2009, Australia introduced a right to request flexible work arrangements as part of the minimum “safety net” for all employees covered by the federal system.
The Flexible Work Scheme was essentially modelled on the approach adopted in the UK, with the right to request to be refused only on “reasonable business grounds”.
The right to request is made available to employees who have completed at least 12 months’ continuous service, or long-term casuals with an expectation of continuing employment.
In 2013 the Federal Government amended the Fair Work Act 2009 (Cth) (the “FW Act”) to, amongst other things, enhance the Flexible Work Scheme and make it more “family friendly” (the “2013 Reforms”). This included:
- an expansion in the range of employees who can make a request; and
- greater clarity in relation to the “reasonable business grounds” basis for refusing a request.
The 2013 Reforms also incorporated a new obligation for employers to consult employees on changes to rosters and hours of work, and for employers to take account of the views expressed by employees of the impact of any such proposed changes, including any impact in relation to their family or caring responsibilities.
Despite the amendments, the Flexible Work Scheme retains its original structure as a “right to request”, that is one that is not subject to oversight or review by a court or tribunal.
In this article we critique the changes to the right to request flexible work arrangements and the new consultation requirements, and their operation in practice. We highlight what issues remain contentious, and where there is likely to be debate over interpretation and application in the future.
Expansion of Eligibility
One of the most notable aspects of the 2013 Reforms is the expansion of the categories of employees who are eligible to request flexible work arrangements to include:
- a parent, or a person who has responsibility for the care, of a child who is of school age or younger;
- a carer (within the meaning of the Carer Recognition Act 2010 (Cth));
- an employee with a disability;
- an employee who is 55 or older;
- an employee who is experiencing violence from a member of the employee’s family; and
- an employee who provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family.
This expansion encompasses a range of non-child dependent care arrangements.
The automatic inclusion of older workers (over 55 years of age) – without any requirement for that individual to indicate their status as a carer – acknowledges the broader fiscal and public policy concerns of extending the workplace participation of older workers.
Employees with disabilities are also covered, as well as those experiencing domestic violence or caring for and supporting such a person. Some of these categories overlap with the existing obligations under Australian anti-discrimination legislation that require employers to make reasonable accommodations for employees with a relevant attribute covered by anti-discrimination legislation.
It is likely that some employers are already providing flexibility to this expanded range of employees; either based on their acknowledgement of their obligations under anti-discrimination legislation, or because they are amenable to such arrangements. However, the 2013 Reforms provide a clear statutory basis for employees to initiate a request, if their circumstances fit within the expanded categories. This may have the incidental benefit of reducing resentment or tension at work over who is entitled to request flexibility and the perceived impact on other employees.
Although concerns have been expressed that these measures might have the adverse effect of decreasing the employment prospects of employees in these categories, such discriminatory conduct would in any event be caught under other legislative prohibitions.
Refusal Based on “Reasonable Business Grounds”
The issue of whether a refusal of a request should be appealable has been a contentious issue. A review of the overall operation of the FW Act in 2012 recommended that the status quo be retained, based on the evidence from a survey conducted by Fair Work Australia (as it then was) that showed of the employer respondents:
- 81 per cent that had received one such request granted it without variation;
- 8.4 per cent granted the request with variation; and
- 10.8 per cent refused the request.
Of the respondents that received more than one request:
- 53 per cent granted all requests without variation;
- 47.5 per cent granted some or all requests with
- variation; and
- 25 per cent were refused.1
However the review panel did recommend that there be a codification of a requirement that the request should only be refused after the employer had held at least one meeting with the employee to discuss the request.
The Flexible Work Scheme (following the 2013 Reforms) adopts a compromise position of seeking to provide further guidance on what constitutes reasonable business grounds, without tying the scheme to any specific procedural steps. The legislation now states that without limiting the concept in any way, “reasonable business grounds” includes circumstances in which:
- the new working arrangements requested by the employee would be too costly for the employer;
- there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
- it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
- the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity; and
- the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.
The essential nature of the scheme as one built on workplace dialogue, rather than external review, is retained.
The empirical evidence collated to date suggests that under the old eligibility criteria, employers were willing to consider requests for flexible work arrangements, and in many cases grant such requests. Once further empirical evidence becomes available it will be interesting to see whether the expansion of the categories of eligible employees has meant that employers find it more difficult to juggle competing requests for flexibility, and whether this can be resolved with minimal conflict at the workplace level.
The Flexible Work Scheme, particularly since the 2013 Reforms, includes a number of measures that are directed at achieving a “family-friendly” approach to workplace relations. However, the scope of these provisions is much broader than simply that of “family friendly”, particularly when regard is had to the range of employees eligible under the right to request provisions.
These changes also show a greater alignment of the right to request with general obligations that apply under Australian anti-discrimination laws, while maintaining a “light touch” regulatory approach, setting the broad parameters for certain workplace “rights” but leaving their final resolution to dialogue at the workplace level rather than by a determinative process.
Employers can benefit from the greater clarity associated with “reasonable business grounds”, and should be mindful of this and other aspects of the Flexible Work Scheme to ensure that employee requests relating to flexible work arrangements are properly and effectively managed.
1. Towards more productive and equitable workplaces; An evaluation of the Fair Work legislation; 2012, 5.2.6.