Fol­low the rules over be­ing flex­i­ble


‘‘Em­ploy­ees have the right to re­quest flex­i­ble work­ing ar­range­ments un­der the Em­ploy­ment Re­la­tions Act.’’

Many em­ploy­ers are will­ing to put in place flex­i­ble work­ing ar­range­ments so that staff can re­main in the work­force but meet their other life re­spon­si­bil­i­ties or plans.

Usu­ally this is just done by dis­cus­sion and agree­ment on what will work best for both the em­ployee and em­ployer.

If you can­not reach agree­ment then em­ploy­ees have the right to re­quest flex­i­ble work­ing ar­range­ments un­der the Em­ploy­ment Re­la­tions Act.

Em­ploy­ees can seek to vary their hours of work, days of work, or their place of work (e.g. an em­ployee can re­quest that they be al­lowed to work from home).

An em­ployee’s re­quest for flex­i­ble work­ing ar­range­ments must be in writ­ing, and must state their name, the date, the vari­a­tion they want and whether it is to be per­ma­nent, the date it is to take ef­fect, and any changes the em­ployer may need to make if the re­quest is ap­proved.

A re­quest may only be re­fused if it can­not be ac­com­mo­dated on one of the per­mit­ted grounds. Those are—

in­abil­ity to re­or­gan­ise work among ex­ist­ing staff

in­abil­ity to re­cruit ad­di­tional staff detri­men­tal im­pact on qual­ity detri­men­tal im­pact on per­for­mance

in­suf­fi­ciency of work dur­ing the pe­ri­ods the em­ployee pro­poses to work

planned struc­tural changes bur­den of ad­di­tional costs detri­men­tal ef­fect on abil­ity to meet cus­tomer de­mand. How­ever, an em­ployer must refuse a re­quest if it is from an em­ployee who is bound by a col­lec­tive agree­ment, the re­quest re­lates to work­ing ar­range­ments to which the col­lec­tive ap­plies, and the changes would be in­con­sis­tent with the agree­ment.

An em­ployee can make un­lim­ited re­quests for flex­i­ble work­ing ar­range­ments but can­not chal­lenge an em­ployer’s re­fusal of a re­quest un­less the em­ployer has breached their obli­ga­tions un­der the Act in some way.

An em­ployer must deal with a re­quest as soon as pos­si­ble, but not later than one month af­ter re­ceiv­ing it, and must no­tify the em­ployee in writ­ing if their re­quest has been ap­proved or re­fused.

If the em­ployer re­fuses an em­ployee’s re­quest, the em­ployer must state the rea­sons for their de­ci­sion. If an em­ployer does not com­ply with their obli­ga­tions they will be li­able to a penalty of up to $2000, which will be payable to the em­ployee.

If you are un­sure of your obli­ga­tions then we rec­om­mend you get ad­vice be­fore re­spond­ing to the re­quest for flex­i­bil­ity. You do not want to give grounds for a per­sonal grievance by a poorly worded re­sponse.

If you think your em­ployer has un­jus­ti­fi­ably re­fused your re­quest for flex­i­ble work­ing ar­range­ments it is best to get ad­vice from an ex­pe­ri­enced em­ploy­ment lawyer if you have not been able to sort it out by talk­ing with your em­ployer.


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