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.

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