How to Maintain Flexible Working Arrangements

COVID-19 restrictions have highlighted many benefits of working from home and opened the possibility of more permanent flexible working arrangements. This can include any changes to hours, patterns, and locations of work.

With this change, businesses should be aware of employer responsibilities and the legal framework governing working from home arrangements.

Eligibility of flexible working arrangements

If an employee is covered by an enterprise agreement, it may contain a clause providing an entitlement for flexible working arrangements which an employer must abide by.

The Fair Work Act 2009 provides some national system employees a right to request flexible working arrangements in limited circumstances. Section 65 of the Fair Work Act 2009 provides permanent staff and casual staff who have worked more than 12 months and have a reasonable expectation of ongoing work on a regular and systematic basis the right to request flexible working arrangements where they:

  • have responsibility for the care of a child who is school aged or younger
  • are a carer under the Carer Recognition Act 2010
  • have a disability
  • are 55 or older
  • are experiencing family or domestic violence, or
  • provide care or support to a member of their household or immediate family who requires care because of family or domestic violence.

It is important to note that employers may deny a flexible working request only on reasonable business grounds.  Reasonable business grounds may include where the requested change will be too costly, impractical or would result in significant loss in productivity or quality of customer service.

The Fair Work Act 2009 also makes procedural specifications for flexible working arrangements requests. Requests must be in writing, clearly explaining what changes are being requested and for what reasons.

Employers have a responsibility to seriously consider a request and must generally first discuss the request with their employee to try and reach an agreement taking into account the needs of the employee, consequences if the flexibility is not provided and any reasonable grounds for denying the request.

A written response to the request must be provided to the employee within 21 days outlining the decision.

Working from home

If an employer agrees to flexible working arrangements, they must ensure they adhere to health and safety obligations.

Under section 19 of the Work Health and Safety Act 2011 persons conducting a business owe a primary duty of care to their employees, which extends to those working from home.

Whilst working from home, it is expected that an employer will do what they reasonably can to manage risks whilst working from home. Safe Work Australia has advised that upholding this may include:

  • providing guidance on what a safe home office looks like
  • allowing employees to borrow work equipment
  • requiring employees to familiarise themselves with good ergonomic practices
  • maintaining regular communication; and
  • providing access to mental health and wellbeing services.

If you need assistance with employment law matter, talk to one of our experienced solicitors. Call us on (02) 4929 7002, or email us or complete an enquiry form.