Under section 65 of the Fair Work Act 2009 (Cth), eligible employees can request changes in their hours of work, patterns of work or location of work if they are carer's for children under school age, or those under 18 with a disability.
However, employers can and do often refuse the request, citing “reasonable business grounds” such as those set out in the Explanatory Memorandum to the Fair Work Act, including that the effect approving the request would have on the workplace and the employer’s business.
Such effect includes the financial impact of granting the request, the impact on efficiency, productivity and customer service, and the inability to recruit a replacement employee.
Employees generally have few options to challenge the refusal unless they have agreed for the Fair Work Commission (FWC) or a third party to deal with the dispute, either in an employment contract, enterprise agreement or other written agreement with their employer.
So, despite the major step forward provided by the inclusion of section 65, it remains the case that employees with carer’s responsibilities can still be pipped at the post by an employer arguing reasonable business grounds.
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For RLC’s recent client Mary*, the right to request provision didn’t go far enough. Mary had worked full-time in a front office role for a company for two years before taking maternity leave for one year. As Mary could not yet return to work on a full-time basis, she requested returning to work part-time but was refused on the basis that the business structure could not accommodate it. She also requested they consider a job-share arrangement but this was also refused. Mary was left in the unfortunate situation of having either to resign or possibly be terminated due to the fact that she could not return to work on a full-time basis. Mary was subsequently asked to confirm her resignation in writing. * Names have been changed |
In 2013, the FWC held that a female employee returning from maternity leave had been constructively dismissed when her employer unreasonably refused her request to work part-time.
This case could be applicable to ‘Mary’ in the example above if she was forced to leave and the employer could not demonstrate that it had reasonable business grounds for refusing the request for a flexible work arrangement.
Remedies may also be available under relevant discrimination legislation such as the NSW Anti-Discrimination Act or the Federal Sex Discrimination Act, as well as the discrimination provisions under the Fair Work Act.
In RLC's submission to the Australian Human Rights Commission’s 2014 inquiry Supporting Parents: Pregnancy and Return to Work, RLC argued that employees who are refused flexible working arrangements, on reasonable business grounds, should be able to seek an independent review of that decision by the Fair Work Commission.
To read RLC’s submission, go here.
