There is currently little scrutiny of an employer’s rejection of a request for workplace flexibility but that may change in the lead-up to the election.
Photo: Eve Fisher
Employers will have to get serious about staff requests for more flexibility under changes flagged by the federal government.
As part of the second tranche of the government’s response to its review of the Fair Work Act last year, and an election pitch to working parents, Labor will seek to legislate “as soon as possible” to allow more flexible arrangements for anyone with caring responsibilities.
While much of the detail will be unveiled ahead of the election, under current laws employers have to respond to a staff member’s written request within 21 days. But the employer has the right to refuse if they believe there is “reasonable business grounds” to do so.
Workplace lawyer and managing principal of People + Culture Strategies, Joydeep Hor, says currently if there’s a refusal there are limited grounds on which an employee can appeal, but this may change when the government announces further changes.
“At the moment there’s not much scrutiny if the request is rejected on reasonable business grounds,” he says. “I suspect that’s the area where there will be changes introduced.”
Prime Minister Julia Gillard says 80 per cent of requests are satisfactorily resolved, but formalising the right will ensure all employers take requests seriously.
Hor says the workplace changes are not just legally complicated but also “often the emotions attached to these requests make it a very sensitive area and one where employers should tread very carefully”.
“Proper management of these issues is critical,” he says.
Hor’s tips for employers when faced with a request for flexible working arrangements are:
- 1. Make sure you understand the request and precisely what the request entails.
- 2. Analyse the role the person was performing before they decided to go on parental leave and what the full scope of that role entails.
- 3. Understand what the business impact of agreeing to the changes will be. The legislation at present allows refusing on “reasonable business grounds”. (Note, this could change under Labor’s plans when further details are announced.)
- 4. Be sure to respond within the 21-day time limit and do so in writing.
- 5. If your answer is going to be “no”, think through alternative arrangements that try to accommodate the employee and offer some flexibility. If an employee asks to go from five to two days a week, you may be able to refuse that, but offer an alternative such as going to three days a week. A bit of lateral thinking rather than a straight “yes” or “no” is required.