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Employers’ rights and requests for flexible work arrangements

Sonya Black, LLB (Hons), B.Com, Special Counsel – Employment Law, Avant Law, QLD

Sunday, 29 January 2023

employees rights to flexible work arrangements

As flexible work arrangements become the ‘new normal’, more and more practices are facing employee requests for flexible work arrangements and the risk of legal action if they don’t comply. It is important for practices to understand the legal issues they should be aware of and how to respond.

The following case^ is a good example of the challenges in balancing supporting employee flexibility requests with the needs of the business.

In one case, Sandra, who had been employed full-time as a receptionist at a practice for three years, had her marriage break down and a bitter custody battle ensued over her son.

The practice supported Sandra through her divorce by allowing work flexibility. Her roster was changed to allow her to attend appointments with her lawyer, and she was allowed to take lengthy telephone calls during working hours, with the practice offering emotional support.

Overwhelmed by the stress of the divorce, Sandra met with the practice manager to request a period of leave. The practice manager agreed as long as she provided medical certificates to cover the leave period. She assured Sandra she would have a job to return to and said the practice might be able to accommodate part-time if that’s what Sandra wants.

Sandra provided a medical certificate for the six weeks she was away. During that time, the practice manager met with Sandra to discuss her return to work. Sandra advised she now has sole custody of her son and can only work part-time, from 9.30am to 2.30pm each day, so she can drop her son to school and pick him up. She asked for leave for every school holiday period and advised she is unable to work weekends, even to cover others on leave.

Sandra is grieving the loss of her marriage and is angry and brazen. She has not advised the practice her son has medical or other issues, which impact her request, and she is unwilling to obtain childcare for him.

The practice manager told Sandra she would need to speak with the practice owner about her request. In the interim, Sandra made a formal request via email for a flexible working arrangement.

Reasons for refusal

The situation above raises a number of legal issues for the practice, which must respond within 21 business days.

Sandra has requested flexible working arrangements in accordance with section 65 of the Fair Work Act 2009 on the basis “she has responsibility for the care of a child who is school age or younger”1.

The practice can only refuse Sandra’s request on reasonable business grounds2, which include:

  1. The new working arrangements requested by the employee would be too costly for the employer.
  2. There is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee.
  3. 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.
  4. The new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity.
  5. The new working arrangements requested by the employee would be likely to have a significant negative impact on customer service3.

Currently, if the practice refuses the request, the reasons for refusal must be included in the written response.

Due to recent amendments to the Fair Work Act 2009 (Cth), from 6 June 2023, the practice must discuss the request with the employee and try to reach agreement before refusing the request. If the practice does refuse an employee’s request for flexible working arrangements, it must include in its written response how the particular business grounds are being relied on to refuse the request. The practice must also set out in its response what changes it would be willing to make to accommodate the employee’s circumstances (if any) and provide the employee with information about the dispute resolution options available to the employee in the Fair Work Commission.

Practices also need to be aware of the Health Professionals and Support Services Award 2010 (Award) (clause 6) which supplements section 65 of the Fair Work Act. This clause requires the practice to try to reach agreement with the employee about a change in working arrangements that will accommodate the employee’s needs.

Grounds for complaint

If the employee is unhappy with the employer’s response to the flexible work request, an employee can invoke the dispute resolution clause under the Award or, from 6 June 2023, under the Fair Work Act 2009 (Cth). An employee may also make the following claims:

Discrimination

Sandra could allege the practice has discriminated against her on the grounds of her family responsibilities by refusing her request. This type of claim could be made under the Sex Discrimination Act 1984 (Cth) or relevant state discrimination legislation.

Adverse action

Sandra could allege the practice has taken adverse action against her because of her family or carer’s responsibilities in breach of section 351 of the Fair Work Act.

Constructive dismissal

Sandra could allege the practice has constructively dismissed her (i.e. left her no option but to resign) by refusing her request for flexible working arrangements. However the bar for constructive dismissal is a high one.

Recommended steps

To minimise the risk of a claim, Avant’s medico-legal experts would advise a practice in this position to:

  1. Respond to Sandra’s request in writing as soon as possible, specifying its reasonable business grounds for refusing her request.
  2. Suggest an alternative flexible working arrangement that goes some way to accommodating Sandra’s request. In this case, the practice offered Sandra part-time employment from 8am to 2.30pm each day. However, the practice denied her request for leave every school holiday, on the basis that it could not prioritise her request for school holiday leave over other employees who are working parents.
  3. Consider offering a short-term compromise to ‘soften the blow’. For example, offer for the new arrangements to commence in the future to allow the employee time to secure childcare arrangements and continue to be flexible in the interim.

1Section 65(1A)(a),Fair Work Act 2009

2Section 65(5), Fair Work Act 2009

3Section 65(5A), Fair Work Act 2009

Protection for your practice

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Find out more at avant.org.au/practicesolutions or by contacting us on 1800 867 113. Practices need to consider other forms of insurance including directors’ and officers’ liability, public and products liability, property and business interruption insurance, and workers compensation.

IMPORTANT: *Avant Practice Medical Indemnity Insurance is issued by Avant Insurance Limited ABN 82 003 707 471, AFSL 238 765. The policy wording is available at avant.org.au or by contacting us on 1800 128 268. Practices need to consider other forms of insurance including directors’ and officers’ liability, public and products liability, property and business interruption insurance, and workers compensation.

Liability limited by a scheme approved under Professional Standards Legislation. Legal practitioners employed by Avant Law Pty Limited are members of the scheme.

^Scenarios in this publication are fictitious and any resemblance to real persons, living or dead, is purely coincidental.

Disclaimers

This publication is not comprehensive and does not constitute legal or medical advice. You should seek legal or other professional advice before relying on any content, and practise proper clinical decision making with regard to the individual circumstances. Persons implementing any recommendations contained in this publication must exercise their own independent skill or judgement or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. Avant is not responsible to you or anyone else for any loss suffered in connection with the use of this information. Information is only current at the date initially published.

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