Being too flexible with workplace flexibility – When being a “caring” employer can come back to bite you!

  

Getting yourself into a pickle when it comes to allowing too much flexibility is quite a common phenomenon in small businesses today. While legally it is necessary to genuinely consider flexible work requests upon return from parental leave, it’s important to be mindful of allowing flexible working arrangements “during” the parental leave period. Many employers fall into the trap of allowing staff to work casually or part time during parental leave periods, or to undertake work from home whilst on parental leave. Except for keeping in touch days, any form of work done during parental leave has the effect of ending the parental leave period. In this case, if new working arrangements are undertaken that are different to those the employee was doing before they proceeded on parental leave, a permanent change in working conditions may have occurred without the employer realising it.

The key message is ‘think carefully and seek professional advice before allowing changes in working arrangements.’ Some you may be obligated to genuinely consider, some you may not. Allowing what is intended to be a temporary change in working arrangements may result in the unintended consequence of a new employment contract being forged. This can then lead to significant problems for an organisation where the change was not planned. For example, allowing an employee to work from home a couple of days each week during parental leave, the hours and days of which are determined at the employee’s discretion. This would break the parental leave period as soon as the employee starts working and would create a new contract that would allow them to continue to work in this arrangement on an on-going basis.

The ability to request flexible work arrangements is enshrined in Section 65 of the Fair Work Act 2009 (Cth) (the Act). Flexible working arrangements may be requested by an employee upon return from parental leave, or at any time thereafter where they have the care of a child of school age of under and meet certain eligibility criteria. Flexible working arrangements may include a request to move to part-time to assist the employee to care for the child. It may also include changes in working patters such as changes in starting and finish times, working from home, job share, condensed working week or fortnight, for example.

The Act states that the employee’s request must:

  • be in writing and;
  • set out the details of the change sought and of the reasons for the change.

Such details might include:

  • the length of time for which the employee is requesting the change;
  • the hours they would like to work each week;
  • the days they wish to work;
  • the start and finish times for those days;
  • the location of work.

The employer in turn is obligated to respond to the request, also in writing, within 21 days of receipt of the request and to give genuine consideration to it. It is possible within this timeframe for the parties to engage in discussion and come to a mutually beneficial arrangement that may be different to the original request. Whether agreeing to or refusing a request, this must also be detailed in the written response by the employer.

While there is no obligation to accept the request outright, employers may only refuse such requests on reasonable business grounds as outlined in the Act. These include, but are not limited to;

  • The new working arrangements requested by the employee would be too costly for the employer;
  • There is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
  • It would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
  • The new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;
  • That the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.

Flexible work arrangements may be agreed to on a temporary or permanent basis. This is up to the parties to negotiate and agree upon. It is recommenced that a new contract of employment or addendum to the existing contract be issued in writing including the new agreed terms so both parties are on the same page.

CCI also recommends that as part of the discussion, employees are made aware of how their employment entitlements will be affected by the proposed changes.

A flexible working arrangement request, if approved, is essentially an agreed variation of the employment contract. For large organisations this may not be particularly onerous. However, small businesses tend to be more heavily impacted and less able to accommodate such request.  This is often due to:

  • lack of additional resources that can absorb tasks where an employee moves from full time to part time;
  • additional costs incurred from introducing flexibility, being proportionately higher compared to overall profit for a smaller organisation compared to large;
  • limited staff numbers meaning roles and skill sets are unique and/ or highly specialised making it difficult to source cover for job share arrangements etc.

This is not to say that flexible working arrangements hold no benefits for employers. When it comes to staff retention, engagement and productivity, the pros can far out way the cons.

If you would like more information, please contact CCI’s Employee Relations Advice Centre on (08) 9365 7660 or advice@cciwa.com