Promoting a healthy work-life balance in your workplace will help you to retain skilled staff and boost productivity. As an employer, you also have a legal responsibility not to refuse flexible arrangements for an employee with parental or carer responsibilities, unless it is reasonable to do so in the circumstances.
Flexible work requests may include arrangements around working time, work organisation or the work environment. A change to work arrangements may occur just once or be ongoing (for a fixed or indefinite time).
Evidence shows that flexible work arrangements benefit employers, employees and their families. There are many different examples of flexible work arrangements in practice.
Download the Best Practice Guidelines: Work and Family at the Fair Work Ombudsman site for more advice on achieving a family-friendly workplace.
Under the Equal Opportunity Act 2010, employers must not refuse flexible arrangements for an employee with parental or carer responsibilities, unless it is reasonable to do so in the circumstances.
Employers may have other legal obligations to parents and carers under the National Employment Standards. Under these standards, an employee with 12 months continuous service may request a change in working arrangements to assist with a child’s care if they are parents or carers of:
- a child under school age, or
- a child under 18 with disability.
Flexible work arrangements can also be an example of reasonable workplace adjustments, which are changes that allow people with disability to work safely and productively.
The Commission also offers training for employers on how to manage flexible work arrangements effectively.
An employer must consider all relevant facts and circumstances in determining whether to agree to flexible work arrangements for an employee with parental or carer responsibilities.
This does not mean that you must agree to every request for changes to existing work arrangements. However, you must not refuse a request unless it is reasonable to do so in the circumstances.
The important point is to consider each request seriously and individually. Each one will have different facts and circumstances, and an arrangement that may work in one situation may not work in another.
Receiving a request
An employee may raise their need for flexible work arrangements because of their parental or carer responsibilities in any number of ways: informally or formally, verbally or in writing.
Remember to be sensitive about receiving and storing personal information disclosed by an employee in the course of making a request.
Considering a request
Circumstances that may be relevant to determining whether a refusal is reasonable or not include the:
- nature of the employee’s work and parental or carer responsibilities
- nature and cost of the arrangements required for an employee to fulfil their family or carer responsibilities
- financial circumstances of your business
- size and nature of the workplace and the business
- effect of the flexible work arrangements on the workplace, including the financial impact on the business
- consequences for your business of having the flexible work arrangements
- consequences for the employee of not having the flexible work arrangements.
Other factors that might be relevant in a particular case include:
- when the arrangements are to start
- how long the arrangements will last
- information that has been provided by the employee about their situation
- accrued entitlements of the employee, such as personal or carer’s leave, or annual leave
- any legal or other constraints that could affect the feasibility of your business accommodating the responsibilities, such as occupational health and safety laws or award penalty rates.
When discussing potential arrangements with your employees, consider changes to:
- hours of work
- break times
- leave arrangements
- scheduling of staff meetings
- work travel
- location of work
- access to other workplace areas.
Consider a trial period for the proposed flexible work arrangement. You could schedule regular meetings with your employee to assess how the new arrangement is working.
Refusing a request
An employer does not have to agree to every request. However, the request must be seriously considered. You cannot refuse a request for flexible work arrangements simply because it has not been done before or because it does not fit in with current workplace practice.
If you do decide to refuse a request, it is good practice to meet with the employee and explain the reasons. Keep a record of the discussion, as well as any other information that was used to come to the decision. You could also explore alternative arrangements with your employee during this meeting.
In practice, flexible work arrangements may include:
- working part time or working agreed hours over fewer days
- job sharing
- working from home
- starting and finishing work earlier or later
- changing hours of work, break times, rosters or meeting times
- extending unpaid leave where paid leave entitlements have been exhausted
- changing the need for work travel and the need for overnight stays
- making up a period of time taken for parental or carer reasons, without loss of pay
- access to an office phone for calls relating to an employee’s parental or carer responsibilities.
The following examples show how employers can make reasonable attempts to create a more flexible workplace.
Gary was working as General Counsel for an IT company when his son was born with disabilities. Gary approached his manager with the idea of a more flexible arrangement to balance his family needs while continuing to provide in-house legal services. Gary now works on a flexible retainer of three days per week. His hours are not set but he is in the office as required (generally no less than two days per week) and works from home the rest of the time.
Mei is a qualified barista at a small coffee shop, open from 7am to 4pm. The peak time for coffee sales is from 7am to 11am and 12.30pm to 2pm. Mei asks her employer whether she can start at 9am so that she can care for her son before his babysitter arrives at their home. Mei’s employer considers her request. If Mei changes her work arrangements there will be no one skilled enough to make the coffees from 7am to 9am. The cost to train another employee to qualify as a barista would be $20,000 and the annual profit for the business is $180,000. Mei’s employer calculates that Mei’s request is not financially viable. He explains to Mei the reasons for being unable to meet her request and they discuss other options. Mei suggests that she can train another employee to cover the 7am to 9am period. Her employer agrees to a trial period reviewed after three months.
Juan Carlos is a senior landscape gardener with a large regional nursery. When he unexpectedly needed to assist with the care of his terminally ill mother, he approached his employer with a request for a more flexible work arrangement. After discussion and consideration, they agreed that he would work half time for a period. A work colleague received training to take up some of his landscaping responsibilities. His work team kept Juan Carlos informed about developments in the workplace. Juan Carlos resumed full-time work following his mother’s death.
Carla is a supervisor in a factory in the northern suburbs of Melbourne where she has worked for 25 years. After her father became anxious and confused with age, Carla and her employer met to discuss how she might be able to provide assistance and continue in employment. Following discussion and consideration of the available options, Carla’s employer installed a phone and allowed Carla to call her father during the day. An ‘emergency flexitime’ system was also implemented and a substitute supervisor trained to cover any absences that Carla might require to care for her father.
Pregnancy, breastfeeding and parental status continue to be the basis of many complaints to the Commission. Resolving complaints quickly, fairly and consistently in the workplace has good results for employers and employees.
Individuals can contact the Commission at any stage for free and confidential information about their rights and responsibilities.
An employee can also lodge a complaint of discrimination with the Commission if they believe they have been treated unfairly or denied legitimate employment opportunities because of a personal characteristic that is protected under the Equal Opportunity Act 2010.