Australia: Timely reminders from the Fair Work Commission: The five categories of employees with access to flexibilty

Last Updated: 28 February 2019
Article by Brian Powles

In a recent decision from the Full Bench of the Fair Work Commission, it was held that the employer lacked a reasonable basis for refusing an employee's request for flexible work arrangements.

The Employee, Detective Senior Constable Gary Emery,  was 58-years-old, and nearing retirement.  His request was to have additional rest days, as he moved towards retirement. The Employer refused this request, in part because of concern for the 'floodgates' of requests of this type, and because of parity and fairness between employees.  Before the Fair Work Commission at first instance, and then later confirmed on appeal, it was held that this refusal lacked a reasonable basis.

This particular decision involved an enterprise agreement, rather than the Fair Work Act, and was complex, but in general it brings under spot-light both an employer's obligations in this situation, as well as key steps that should always be taken when an employer receives a request for flexible work arrangements.

Legal considerations

The right to make a request for flexible work arrangements forms part of the National Employment Standards in the Fair Work Act 2009 (Cth).

When an employer deals with (a) a request to work under flexible arrangements and (b) with the implementation of such request, two important issues must be considered:

  • the requirement to consider and properly respond to a request; and
  • if the request involves remote work, an employer's obligation to ensure that any remote working is done safely.

To be entitled under the Fair Work Act to make a request under this section an employee must fall into one of the categories defined in the section. These include a person who:

  • has a child of school age or younger;
  • is a carer;
  • has a disability;
  • is over 55 years of age; or
  • is experiencing violence from a family member or is providing care or support to an immediate family or household member who is experiencing such violence.

An employer's written response must indicate whether the request has been accepted or denied. If it is denied, reasonable business grounds must be given for the denial such as the proposed arrangement being too expensive, damaging customer service or teamwork, or causing difficulties for other employees. The expenses involved with complying with work health and safety obligations are also relevant.

An employer's failure to comply with the procedure set out above can incur a penalty of up to $33,000. In Stanley v Service to Youth Council Incorporated [2014] FCA 643, despite an employer having been found to have unintentionally contravened the procedure and showing contrition it was still fined $4,000.

Working From Home as a flexibility arrangement – Some Considerations

Work Health and Safety legislation does not differentiate between the official workplace and other places where employees are approved to carry out work. If an employer has an employee who has been approved to work remotely from home, the employer needs to consider the health and safety implications of this work area.

In Hargreaves and Telstra Corp Ltd  [2011] AATA 417 an employee of Telstra who twice fell down the stairs in her home was awarded compensation for medical treatment as well as weekly compensation. On the first occasion Ms Hargreaves, who worked from home two days a week, was coughing violently as she went down stairs in her socks to get cough medicine. On the second occasion she fell while descending the stairs to lock her front door, as instructed by Telstra after an earlier burglary at her property. Both of these falls were held to have occurred while Ms Hargreaves was carrying out her work.

If an employer considers allowing an employee to work from home, a work health and safety audit should be conducted to ensure that reasonable steps are taken to avoid risks to health and safety when work is carried out. Some common health and safety risks in the home include trip hazards from wires, back injuries from unsuitable office equipment and safety hazards such as potential fires from excessive clutter on or around office equipment.

Pros and Cons of Flexible Work Arrangements

Flexible arrangements can offer real benefits for employers, but potential drawbacks also should be considered and steps taken to avoid or mitigate them.

The positives for employers include savings in overheads such as rent, office equipment and electricity, resulting from smaller or more shared work spaces. Flexible arrangements can also make a business more attractive to valued employees.By creating and endorsing a diversity of culture, a business naturally increases its chances of attracting and securing the best employees available for their workplace needs.

On the other hand, employers can find it more difficult to engage with and reap some positive benefits from employees who work under flexible arrangements. The benefits of shared learning can diminish when more experienced employees are the ones more likely to take up flexible options and, thus, spend less time face to face with a team.

Flexible arrangements can also stymie good team work and result in increased employee grievances, if not managed appropriately. Requiring a fixed number of days working in the office along with effective communications with remote or part-time workers can be of real benefit.

By and large employers are embracing employee flexible working options which technology allows them to use. While these arrangements can have real advantages, businesses need to keep the legal issues firmly in mind and work proactively to overcome some of the drawbacks of employees working apart.

Key Takeaways for Employers

Requests for flexible arrangements are most commonly made in respect of families. For many HR professionals and managers,  'family arrangements' and 'flexible arrangements' have become synonymous.  It is difficult to imagine a request, such as DSC Emery's in this case, being refused on the grounds of 'flood-gates' or 'parity', had it come from an employee who had family responsibilities.

For this reason, it is critical for employers to recognise that these provisions apply equally to the other categories of employees, most notably those over 55 years of age. This recent case highlights this importance, and should serve as a lesson to employers when reviewing their internal arrangements, policies, or any future request from employees.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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