What rights do employers and employees have when it comes to flexible working?

Over the last couple of years, employers and employees have faced challenging working environments due to COVID-19. Governments and employers have implemented mandates and directions to help manage the safety of workers and stop the spread of the virus.

With the current case numbers, and the state government yet to provide definitive directions, employers are beginning to wonder what they can do to ensure their workplace is free from risk to the health and safety of workers. Despite no revised government mandate, two of Australia’s largest corporations have announced they are encouraging employees to work from home.

“With no direction from the government, both employers and employees may be wondering about their legal rights when it comes to flexible work,” says Catherine Stephens, associate director of employment law at professional services consultancy BlueRock.

“Understanding and navigating the legalities and process of flexible work arrangements can be difficult.''

Catherine has shared her advice on what this means for businesses and how to navigate through the process.

What is ‘flexible working’ and who is eligible?

Flexible working may include an employee choosing to work at their preferred location (e.g. at home), changing start or finish times, and splitting shifts or job sharing.

While we have seen the rise of employers offering flexible working arrangements as part of employment terms and conditions, outside a contractual right, the right to request flexible work arrangements is limited by the Fair Work Act 2009 (Cth) (FWA) to a specific group of workers. Section 65 (s65) of the FWA provides that an employee may request change in working arrangements if any of the following circumstances apply:

• The employee is a parent, or has responsibility for the care, of a child who is of school age or younger
• The employee is a carer
• The employee has a disability
• The employee is 55 or older
• The employee is experiencing violence from a member of the employee’s family
• The employee provides care or support to a member of the employee’s immediate family or household who requires care or support because the member is experiencing violence from the member’s family

To be eligible to make a request under s65 the employee must have completed 12 months continuous service with the employer. For casual employees, they must have been a regular casual for at least 12 months and have a reasonable expectation of continuing regularly in the role.

What is the process?

To access flexible working hours and patterns of work, employees must submit a request in writing to the employer. Included in this will be a detailed outline of the changes that are being asked for and the reasons for these changes.

Employers covered by an award must first discuss the request with their employee to try to reach an agreement about changes to their working conditions. This includes taking into consideration the needs of the employee, possible consequences if the changes requested cannot be accommodated, and any reasonable business grounds for refusing the request.

All employers who receive a request must provide a written response within 21 days, outlining if the request has been approved or declined. Employers can engage a legal service for advice on whether a request is properly made and how to respond, and/or use the Workplace flexibility online course provided by Fair Work Australia for guidance.

What does ‘reasonable business grounds’ mean?

Employers have the right to refuse a request for flexible work based on reasonable business grounds. This includes factors such as:

• The requested arrangements being too costly for the employer
• If other employees’ working arrangements cannot be changed to accommodate the request or if it’s impractical to change other employees’ working arrangements
• The request made would result in a significant loss of productivity or have a negative impact on the workplace

Employees to whom s65 does not apply

Employees who are not covered by s65 of the FWA can still ask their employer to approve flexible work arrangements, including working from home due to the COVID-19 pandemic. However, this kind of request is not a ‘right’ as a matter of law, so other than for work health and safety purposes, an employer is not bound to grant the request.

What if I want to direct my employees to work from home?

For some employers, the risk of COVID-19 from a health/safety and productivity perspective may mean that they want to direct employees to work from home.

Employers are entitled to give directions which are both lawful and reasonable. As you may expect, there is less resistance to working from home arrangements from employees than in relation to directions to return to work in the office. Nevertheless, if you wish to direct employees to work from home, you must:

• Give a lawful and reasonable direction. This should be in written form and make clear the terms of the direction, including when the direction will cease.
• Ensure that employees are set up to work from home safely.
• Manage employee performance during the working-from-home period.
• At the conclusion of the working-from-home period, the employer must give a clear written direction that employees return to the workplace.

As always, employers must remember that when staff work from home, then their home becomes an extension of the workplace. This means that you may be liable for any accidents or injuries that occur while they are working at home.

Finally, seek professional advice. Workplace legislation is constantly evolving, particularly with the uncertainty of the current climate, and it can be tricky for employers to keep across all the latest changes. Outsourcing assistance from an external adviser, such as an employment lawyer, will help you to protect both yourself as an employer and your employees.

Catherine Stephens is the associate director in law at BlueRock

Please note that this article has been prepared for informational purposes only, and is not to be construed as legal advice.