Flexible work shock

When you come back to work in the New Year, you could be in for a rude shock – Australia’s workplace laws are set to change again on January 1, with the introduction of the new National Employment Standards and Modern Awards system.

The biggest change under the National Employment Standards is a provision that allows any person who cares for children under school age to request flexible working arrangements. Businesses can only refuse on “reasonable business grounds”, but exactly what constitutes reasonable business conditions remains unclear.

Industrial relations lawyer David Davies, a partner at law firm Sparke Helmore, says the impact of the flexibility provisions will touch millions of businesses across Australia.

“Just about everyone who has any sizeable workforce at all is going to get one of these requests pretty soon.”

The new National Employment Standards are described by the Rudd Government as a “safety net” for Australian workers – a list of basic conditions that every employer must meet.

Whereas Work Choices provided five minimum entitlements for employees, there are 10 NES in all:

• Maximum weekly hours of work
  
• The right to request flexible working arrangements
  
• Parental leave and related entitlements
  
• Annual leave
  
• Personal/carer’s leave and compassionate leave
  
• Community service leave
  
• Long service leave
  
• Public holidays
  
• Notice of termination and redundancy pay
  
• Provision of a Fair Work Information Statement

Many of these, such as the maximum weekly hours provision and provisions around annual leave, long service leave and public holidays, are largely unchanged from previous legislation.

But IR experts say there are a few particular changes around flexible working arrangements and redundancy pay that employers particularly need to watch out for.

The right to request flexible working arrangements

Under the new laws, an employee who is a parent, or has a responsibility for the care of a child under school age may request flexible working arrangements, such as changes in hours of work, work patterns or work locations (that is, working from home).

The employee must have had more than 12 months of continued service or, in the case of casual employees, must have more than 12 months service and have a reasonable expectation of continuing regular employment.

The request must be in writing, with the details of the proposed changes and the reasons for the request set out. The employer then has 21 days to respond and can only refuse the request on “reasonable business grounds”.

Which raises a big question – what exactly are “reasonable business grounds”?

The explanatory memorandum produced with Julia Gillard’s original Fair Work Act does not specify “reasonable business grounds” but does give three examples:

• The effect on the workplace and the employer’s business of approving the request, including the financial impact of doing so and the impact on efficiency, productivity and customer service.
  
• The inability to organise work among existing staff.
  
• The inability to recruit a replacement employee or the practicality or otherwise of the arrangements that may need to be put in place to accommodate the employee’s request.

In other words, cost and convenience will come into it.

However, Kathryn Dent, workplace relations lawyer at Gadens, says requests will need to be assessed on a case-by-case basis, with due consideration of the staff member’s duties, rule within the business and the nature of their work.

For example, it will be difficult for a sales representative who needs to deal with clients face-to-face to work from home. It would also be difficult for a supervisor in a retail or manufacturing to work from home.

The size of the business may also be a consideration. “The bigger the employer is, the more likely it is they are going to be able to accommodate requests,” Dent says.

However, David Davies from Sparke Helmore warns that many employers “are going to find it difficult to argue ‘reasonable business grounds’, particularly if, like his law firm, there are already workers in part-time or work-from-home roles.

“We’re going to find it pretty difficult to knock it back on reasonable working grounds,” he says.

“I just don’t think there are that many jobs that are inherently full-time and that can’t be performed on some sort of flexible basis.”