Flexible Working Arrangements: What Australian Employees and Employers Must Know

Flexible working arrangements have taken flight since the Covid-19 pandemic with work-from-home (WFH) and remote work becoming one of the most commonly requested flexible working arrangements. Given the exponential rise on remote working, both employers and employees must be aware of their rights and obligations.

Who can request flexible working arrangements?

In Australia, the right to request flexible working arrangements is part of the National Employment Standards (NES) under the Fair Work Act 2009 (Cth) (FW Act). This right is available to any permanent full-time/part-time employees who would like to change their working arrangements where any of the following circumstances apply to that employee:

• The employee is pregnant;
• The employee is a parent, or has responsibility for the care of a child who is school age or younger;
• The employee is a carer (within the meaning of the Carer Recognition Act 2010);
• The employee has a disability;
• The employee is 55 years or older;
• The employee is experiencing family and domestic violence;
• The employee provides care or support to a member of their immediate family or household who requires care or support because that person is experiencing family or domestic violence.

It is also a prerequisite that an employee has completed at least 12 months continuous service immediately before making a request.

Casual employees who satisfy one of the above eligible circumstances are also able to request flexible working arrangements if:

• in the last 12 months, have been working on a regular and systematic basis; and
• there is a reasonable expectation of continuing work with their employer on a regular and systematic basis.

What are flexible working arrangements?

In short, flexible working arrangements are alternative work patterns, or terms and conditions of employment which assist employees with better balancing their work and personal responsibilities. Naturally, types of flexible working arrangements will vary depending on the job and industry, however these arrangements will typically the employee more choice over when, where and how they perform their work.

Some common types of flexible working arrangements include:

• remote working/working-from-home arrangements;
• flexible hours or changes to an employees’ normal start and finish times, usually including “core hours” where the employee must be working;
• reduction of hours i.e. from full-time to part-time hours;
• job-sharing or split shift arrangements; and
• compressed/reduction of work days i.e. working 10 hours each day over Monday to Thursday, rather than working 8 hours each day over Monday to Friday.

How must flexible working arrangements requests be handled?

1. Employees seeking flexible working arrangements must make their request in writing and outlining:
   1. the change/s sought;
   2. the relevant eligible circumstance/impacting the employee ; and
   3. Including any evidentiary material to support the basis of their request.
2. Upon receiving the request, employers must assess the employee’s eligibility to request flexible working arrangements.
3. Employers must afford due consideration to the employee’s request, including considering how the proposed arrangement would impact the business and how the refusal of the request would impact the employee making the request.
4. Discuss the request with the employee and genuinely attempt to reach a mutual agreement which accommodates both the requested change/s and the employer’s operational requirements.
5. Employers are required to respond in writing, to the employee’s request within 21-days. The response must state:
   1. Whether any further information or evidence is required;
   2. Whether the request is granted or refused;
   3. Information about any other changes that the employer is willing to agree to in the alternative (if appropriate).

Employers must also be able to substantiate that they have actually engaged in the process and satisfied each of the above steps. Therefore, contemporaneous record keeping is vital.

Refusal of a request for flexible working arrangements

Under the FW Act, employers can only refuse a request on ‘reasonable business grounds’ as prescribed by Section 65A(5).

Reasonable business grounds may include:

• the requested working arrangements would be too costly for the employer;
• accommodating the requested changes would require the employer to change other employee’s working arrangements to the extent that it would be impractical, or that the capacity does not permit such e.g. they would need to hire new employees or other employees would be unreasonably burdened by an increased workload; and
• accommodating the requested changes is likely to result in significant loss in efficiency, productivity or significantly and negatively impact customer service.

Employers must also consider their obligations under state and federal equal employment opportunity laws e.g. the Disability Discrimination Act 1992, the Sex Discrimination Act 1984 which make it unlawful to discriminate against an employee based on particular protected attributes. Some of these protected attributes include; family responsibilities, status as a parent or carer, or pregnancy.

Therefore, it is incumbent on employers to exercise due diligence and ensure that the refusal of a request is indeed reasonable. The decision to refuse a request should be reached with caution and with the understanding that such carries risk, as in some cases, a refusal can amount to unlawful discrimination.

 

Addressing Disputes

If an employee considers that their formal and valid request was unreasonably refused, or if they did not receive the employer’s response to their request, employees are able to apply to the Fair Work Commission (FWC) to resolve the dispute.

It is recommended that in the first instance, employees and employers genuinely attempt to resolve the dispute internally through pragmatic discussions. If the dispute persists, employees are able to utilise the Form F10C to have the matter heard by a FWC member. This is generally conducted through a conciliation or mediation.

WFH/Remote Work – WHS Obligations

WHS obligations are commonly overlooked or misconceived in respect of WFH and remote work arrangements. The legal obligations imposed on employers and employees are not displaced by WFH or remote work arrangements. This is because, any environment where an employee is agreed to be performing work is considered a workplace as per applicable State and Federal WHS legislation.

Therefore, it is vital that employers take steps to ensure the health and safety of its workers who are WFH or working remotely, so far as reasonably practicable. This includes assessing and mitigating the health and safety hazards which may be present in the workplace.

WFH/Remote Work – Common WHS Risks 

Health and safety risks most commonly present in WFH/remote workplaces include:

• improper workstation set up;
• poor working conditions;
• prolonged sitting or sedentary work;
• trip and slip hazards;
• fatigue; and
• family and domestic violence.

Risk Management

As a result, employers are urged to manage risks in remote workspaces by undertaking a risk management process which involves identifying hazards, assessing the risks, controlling the risks and procedurally reviewing and maintaining the implemented controls.

1. Identify Hazards

Living arrangements vary between employees. As a result, the risks for each employee differ. Therefore, effective consultation with employees is crucial in ensuring that employers can meet their WHS duties. Employers are urged to work with their employees to manage risks in remote working environments. This is since employees are often the only people with the awareness of the risks in their own home environment. By working together to identify and manage risks, effective control measures can be implemented.

2. Assessing Risks

When a risk is identified, employers must assess and understand the impact of the risk upon their employee. This includes assessing the occurrence of the risk and the degree of hazard faced. Failing to make assessments of risks in the workplace will likely expose employees to harm.

3. Control Risks and Implement Safeguards

Once a risk has been identified and assessed, it needs to be controlled so far as reasonably practicable. This can be achieved by using a variety of different methods. Some methods may include:

• Establishing procedures;
• Sourcing fit for purpose equipment; and
• Establishing a point of contact for the employee/engaging in regular communications.

Where necessary, employers may need to consider whether they are unable to sufficiently control any risks to the extent that they cannot accommodate the employee’s WFH/remote work arrangement.

4. Review and Update Control Measures

Control measures are only useful when they address the intended hazard. Over time, hazards change and so too does the management of existing hazards. Employers are required to ensure that there is a process established for consistent reviews of control measures in order to ensure that the health and safety of employees is protected.

Equally, employees are not exempt from having regard to their own health and safety during WFH or remote work. Employees are legally obligated to:

• take reasonable care for their own and not adversely affect others, health and safety;

• comply with reasonable WHS instructions; and
• cooperate with reasonable WHS policies and procedures.

 

Contracts and Policies

Employers must ensure that employment contracts and workplace policies adequately cover the expectations of employees while working from home or remotely. This will assist in preventing disputes regarding the obligations and requirements of each party as well as mitigating risks.

Workplace policies ensure that all employees, regardless of whether they are working in the office, remotely, or in a hybrid model, are treated fairly. This helps avoid any perception of favouritism or unequal treatment. A clearly outlined flexible working policy ensures that all employees have access to the same opportunities for flexible work and that any requests for flexible working are evaluated based on objective criteria rather than personal preference.

Further, flexible working arrangements require clear performance expectations to ensure productivity doesn’t decline. Policies and contracts can outline how work will be monitored, how performance will be measured, and what the expectations are regarding deadlines, communication, and availability. This helps employers manage remote or hybrid teams effectively while ensuring employees still meet company standards.

It is best practice for employers to provide an allowance, or to loan equipment to employees to ensure that their remote workstation is sufficient to conduct the inherent requirements of their role. If equipment is loaned to employees, it is imperative to keep accurate records as these items will need to be returned during the separation process.

By having clear, comprehensive policies and contracts in place, both employers and employees are better equipped to navigate the complexities of flexible working arrangements. This can aid in cultivating a compliant, healthy and productive work environment.

The Workplace Law Team has extensive experience with drafting WFH policies, contracts and employee handbooks. For ongoing support for your business, Chamberlains Law Firm offer HR services to employers. To learn more, click here.

Employers are reminded that breaching WHS obligations under relevant State and Federal legislation can expose your business to significant liability. To better understand your position, rights and duties concerning working from home arrangements, contact the Workplace Law Team.