By Simon Abraham

15 March 2016

The National Employment Standards (“NES”) form part of Part 2-2 of the Fair Work Act 2009 and set out the minimum entitlement provided to all employees.

Certain employees, such as new parents and carers, have the right to request flexible working arrangements under the Fair Work Act. Employers can only refuse these requests on reasonable business grounds.

It is important for employers to ask the following questions:

  1. When was the last time I reviewed my business’ employment agreements?
  2. Do my current employment agreements in place account for the relevant legislation?
  3. Does my business plan account for flexible working requirements or parental/carer working arrangements?
  4. Am I exposed to a possible breach of the National Employment Standards?

Requests for flexible working arrangements must be in written format and explain the reasons for the request and what changes are being asked for. Employers who receive a request must give a written response within 21 days saying whether the request is granted or refused. They can only refuse a request on reasonable business grounds. If a request is refused the written response must include the reasons for the refusal. It is a contravention of the Fair Work Act 2009 if an employer does not respond according to these requirements.

There is no requirement for an employer to agree to a request for flexible working arrangements. However, the Act empowers the Fair Work Commission to deal with a dispute. This generally only happens if the parties to the dispute have agreed in an employment contract.

In Victoria, the Equal Opportunity Act 2010 governs discrimination law. For example, section .19(1) sets out that an employer must not unreasonably refuse to accommodate the responsibilities of a carer in relation to workplace arrangements. This section specifically highlights work from home arrangements:
“An employer may be able to accommodate an employee’s responsibilities as a parent or carer by allowing the employee to work from home on a Wednesday morning or have a later start time on a Wednesday or, if the employee works on a part-time basis, by rescheduling a regular staff meeting so that the employee can attend.”

Section 19(2) of the Equal Opportunity Act 2010 explains that an employer will be found to have unreasonably refused to accommodate the above responsibilities by reference to the size and nature of the employer’s business, the nature of the employee’s responsibilities, the employee’s circumstances and the nature of responsibilities as a parent or carer. It is also relevant to note that s.10 of the Act highlights that motive is irrelevant to a determination of behaviour constituting discrimination.

It is important to ensure that the current employment contracts in place at your business take into account the above requirements set out in the National Employment Standards and the Fair Work Act.

Related Articles

View All
Employment Law / Small to Medium Enterprises

Full Federal Court allows double dipping for casual employees

Justice Bromberg and the Full Federal Court of Australia have once again delivered bad news for employers  In certain...
Read More
Employment Law / Small to Medium Enterprises / Start-ups & Emerging Enterprises

Fair Work Commission amends 99 Awards during COVID-19 Pandemic

On Wednesday, 8 April 2020, as a result of the COVID-19 Pandemic, a six (6) member Fair Work Commission full bench,...
Read More
Employment Law

New industrial manslaughter laws are no laughing matter for employers

What are the laws The new laws will be applicable to all employers, self-employed individuals and officers of a company...
Read More
Employment Law / Commercial Law / Litigation & Dispute Resolution

What employers need to know when letting someone go

A staff member may need to be let go because the business can no longer afford them, or perhaps they are just not...
Read More
Employment Law / Litigation & Dispute Resolution / Intellectual Property

Dude, Where’s my Business? High Court Delivers Warning to Employees and Competitors who engage in Dishonest Conduct to Get Ahead in the Game

The case of Ancient Foresters in Victoria Friendly Society Limited v Lifeplan Australia Friendly Society Limited [2018]...
Read More
Employment Law / Litigation & Dispute Resolution / Construction

Does it Really Matter What You Call Your Employees? The Difference Between a Permanent and a Casual Employee.

The Federal Court found the casual employee worked a regular and continuous pattern of work for more than two years,...
Read More
Commercial Law / Construction / Employment Law

September 2018 Newsletter

September 2018 Newsletter See the full newsletter here Welcome TLFC Law are pleased to welcome Min Seetoh to the...
Read More
Commercial Law / Employment Law / Real Estate Agents

Are you complying with the Real Estate Industry Award? Don’t get caught out!

Changes to the Real Estate Industry Award 2010 Important changes to the Award include: Classification of employees and...
Read More
Not-for-Profit & Charities / Technology and Start Ups / Adverse Possession

TLFC – Award Finalist for Law Firm of the Year (Medium Category)

Tisher Liner FC are proud to be nominated as an award finalist in the 14th annual Victorian Legal Awards Medium Law...
Read More
Employment Law

First they came for the accountants…

With several popular restaurants recently making headlines for allegedly underpaying employees, it is a good time for...
Read More
Employment Law

Casual to Permanent Swap

The Fair Work Commission (Commission) will introduce a “ casual conversion ” clause into modern awards following a...
Read More
Employment Law

How discretionary are “Discretionary Employee Payments”?

These policies (or contacts of employment themselves) may incorporate a statement to the effect that these are ex...
Read More