Flexible Working Arrangements? Entitled?

The very thing I will state is don’t be dismissed over not be flexible in the workplace. You could have lost your income over something that could been solved. Sometimes in the workplace “you have to give a little bit, to get a lot”. Lets explore what you the employee and the employer are entitled to and can or cannot do.

What are flexible working arrangements?

For many employees, flexible working arrangements can be very valuable and ensure an their work is balanced with their personal commitments. These arrangements may include:

• Flexible start and finish times
• Compressed hours
• Part-time work
• Casual work
• Job sharing
• Flexible rostering
• Working from home or another location
• ‘Purchasing’ extra paid leave
• Unpaid leave
• Gradual increase or decrease in work hours (e.g. transitioning back to work after parental leave, or transitioning an employee into retirement)

Can I request flexible working arrangements?

Any employee can request flexible working arrangements. (you cannot be dismissed for requesting this). Though it is not guaranteed whether your employer has to accommodate your request. However, some employees have a legal entitlement to request flexible working arrangements under section 65 of the Fair Work Act 2009 (Cth) (‘FWA’). There are two requirements that must be met.

Firstly, the employee must either be:

• A permanent employee for at least 12 months; or

• A regular casual employee for at least 12 months. With a reasonable expectation of continuing employment on a regular and systematic basis.

Secondly, the employee must be making the request for flexible working arrangements because they are:

• A parent or guardian for a school-aged child or younger; or

• A carer; or

• A person with a disability; or

• Aged over 55 years old; or

• Experiencing family violence; or

• Providing care or support to a family or household member experiencing family violence.

Furthermore, requests for flexible working arrangements must be in writing. Setting out the details and reasons for the change sought (s 65(3) FWA).

Can my employer refuse my request?

If an employee makes a request for flexible working arrangements, the employer has 21 days to respond to the request and state whether it has been granted or refused (s 65(4) FWA). Therefore, making a request for flexible working arrangements does not mean you are automatically entitled to receive them. Under s 65(5) FWA, the employer can refuse the request only if they have reasonable business grounds to do so, and must confirm the reasons for refusal in writing. Reasonable business grounds may include, though are not limited to:

• The new working arrangement requested by the employee would be too costly for the employer;

• There is no capacity to change the working arrangements of otheremployees to accommodate the request;

• It would be impractical to change the working arrangements of other employees. Or to recruit new employees, to accommodate the request;

• The new working arrangements would likely result in lost efficiency or productivity;

• The new working arrangements would likely have a negative impact on customer service.

Many employees resign when your request is refused. This may or may not meet the test of being forced to resign (constructive dismissal). Get advice before you resign.

CASE EXAMPLE: Dee Sinclair v Sunwise Constructions Pty Ltd [2021] FWC 5994

A case example of where an employer may reasonably refuse a request for flexible working arrangements occurred in the recent Fair work Commission case of Dee Sinclair v Sunwise Constructions Pty Ltd [2021] FWC 5994, in which Ms Dee Sinclair made an unfair dismissal application following her dismissal on 25 May 2021 from Sunwise Constructions Pty Ltd.

Ms Sinclair was a full-time receptionist and office administrator for Sunwise Constructions for four and a half years. Sunwise Constructions Pty Ltd is a small business, owned and managed by Mr Wayne Elkin and his wife, Ms Elisa Elkin. The business had eight other employees.

While employed at Sunwise Constructions, Ms Sinclair was responsible for caring for her grandson, Blake, who had special needs. Ms Sinclair’s responsibilities as a Carer affected her ability to perform the requirements of her role, as she was unable to work the hours required of her. She was employed to work full-time, between 8-8.30am to 4-4.30pm, though was unable to work these hours throughout most of her employment. Even though there was no formal agreement, Sunwise Constructions allowed Ms Sinclair to work part-time, under 30 hours per week. Moreover, some of the hours were at Ms Sinclair’s choosing and outside of business hours.

An article I have written on Ageism in the workplace, in the AWNA web site may be of interest to you, click here

Consideration of the employees situation

Over several years, Sunwise Constructions was very considerate of Ms Sinclair’s personal situation and accommodated flexible working arrangements where needed, including allowing time off, altered work hours, having children in the office, and allowing her to forward office calls to her mobile.

However, Sunwise Constructions financially struggled in 2020 and required maximum work efficiency to ensure the business stayed afloat. In particular, Sunwise Constructions sought to streamline their processes. By having all administrative matters go through the office. As noted by Fair work Commissioner O’Neill at paragraph 13 of the decision, “In this context, Ms Sinclair’s irregular attendance and hours for the business was no long sustainable.” Commissioner O’Neill noted that although the company had been accommodating of Ms Sinclair’s personal situation.

Ms Sinclair’s work hours, efficiency and reliability and significantly declined over the past few months, which was having a negative impact on the business. In respect of this situation, Ms Sinclair was given a warning that she must meet the onsite presence requirements of her role, which was particularly important given her role as office staff.

Eventually, Ms Sinclair’s employment was terminated when she indicated she was unable to work the hours required of her. Although Ms Sinclair had requested flexible working arrangements due to her Carer’s responsibilities. It was not sustainable for the business for her to work reduced and sporadic hours. Commissioner O’Neill decided that there was a valid reason for the dismissal, summarizing as follows at paragraph 31:

“Simply put…Ms Sinclair had long struggled to juggle the demands of the position with her significant personal demands. and an impasse had been reached. The business couldn’t sustain having the position held by someone who couldn’t fill it properly as it was affecting the viability of the business and everyone’s employment.”

Commissioner O’Neil

In situations such as this, a refusal to accommodate flexible working arrangements may be justified.

If my request was unreasonably refused, what can I do?

When you have made a request for flexible working arrangements that you believe was unreasonably refused, you may be able to take action in the Fair work Commission. If you were dismissed from your employment in relation to your request, you may be entitled to commence either an Unfair Dismissal claim (F2 Form) or a General Protections claim (F8 Form). If you are still working at the Company but have been subjected to unfair treatment since making the request, you may be able to commence a General Protections Not Involving Dismissal claim (F8C Form). For the purposes of a General Protections claim, requesting flexible working arrangements will likely constitute an exercise of a workplace right, and may also be considered discrimination if the request was in response to a disability, family or Carer’s responsibilities, or age.

Conclusion: What are flexible working arrangements?

A Whole New Approach are not lawyers are Australia’s leading workplace advisors, we advise in all states. Give us a call the advice is free and confidential 1800 333 666. We are experts in all things to do with the workplace. We are here for you, make the call, prompt, confidential advice today. Any Fair work Australia matters, workers rights, employment rights. We work Australia wide, including Victoria, NSW, Qld

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