Employee entitlements and employer obligations
by Kirsten Lesina

The world is inevitably shifting; the days of treating employees as if they were machines are long gone.

Societies and workplaces keep evolving, and the requirements for undertaking work today are very different to even 15 years ago. When your portable computer can connect to your employer’s cloud systems, and your office extension can be diverted to your mobile phone, being physically at the office does not seem as important as it used to be not so long ago.

While some business leaders of older generations have difficulty adjusting to the changes, and resist embracing principles such as “work-life balance”, many employees would prefer a much quicker transformation of working conditions.

So what happens if you’d like to work four longer days and take 3-day weekends? Or work four days from the office and one from home? Can your employer refuse?

Or what if you’re the manager and your staff have requested more flexibility than you’re comfortable with? Are they entitled to flexible working arrangements?

Before sorting out the obligations and entitlements, it’s important to understand the benefits and drawbacks of flexible working arrangements.

One benefit is that employees who are offered flexible working arrangements are often happier and more loyal to their employer.

Loyalty cannot be bought or enforced, but if employees are offered flexible arrangements to allow them to beat the rush-hour traffic, or save on childcare costs one day a week, they will be more productive and motivated, which in most cases will translate to increased customer satisfaction. The benefits are wide and numerous, including having access to a larger pool of skilled candidates when recruiting, higher staff retention, less stress or absenteeism or risk of burning out.

On the downside, an employer has to take into account all kinds of potential risks such as:

  • customers/clients might feel neglected if the question they ask on a Thursday gets answered the following Tuesday;
  • once you authorise a flexible arrangement for one employee, it creates an implied entitlement for all the others whose interests might be in competition with one another;
  • working from home makes it difficult to enforce workplace policies (for example, your drug and alcohol policy); and
  • allowing longer hours might create flow-on requirements (additional hours for your receptionist) and so on.

How to decide then, as an employee, whether to ask for flexible working arrangements and what kind of flexible arrangements to ask for?

The answer is easy: always ask for what your ideal arrangement would be.

The employer is obligated, in certain circumstances to be open to negotiation, even if, in the end, the request is rejected.

Employees are entitled to request flexible working arrangements if they:

  • have the responsibility for the care of a school-aged child or younger;
  • are a carer under the Carer Recognition Act;
  • have a disability;
  • are 55 years or older;
  • are suffering family violence; or
  • care for an immediate family member suffering family violence.

If you fall into any of those categories, you must make your request in writing and explain your reasons as well as the changes sought. The employer must respond in writing within 21 days, and the request can only be refused if “reasonable business grounds” exist.

So what are “reasonable business grounds”?

According to the Fair Work website, reasonable business grounds may exist if:

  • the requested arrangements are too costly;
  • other employees’ working arrangements can’t be changed to accommodate the request;
  • it’s impractical to change other employees’ working arrangements or hire new employees to accommodate the request; or
  • the request would result in a significant loss of productivity or have a significant negative impact on customer service.

As an example, if you are the sole receptionist for a business and request flexible working arrangements to work from 10am to 6:30pm but the business hours for the business are 8:30am to 5:00pm, an employer may decide on reasonable business grounds to refuse your request on the basis that it would be too costly to hire a new employee to cover the first hour and a half of the business day, or, if no new employee was hired it would have a significant negative impact on customer service if there was no receptionist for long periods of time.

If in doubt however, the golden rule is to seek legal advice.

BELAW is here to help to put your best case forward as an employee, or to ensure you’re not breaching your obligations as an employer.

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