While the National Employment Standards do not specify a penalty if a request is refused, Peter Vitale from CCI Lawyers says employees will have the ability to ask Fair Work Australia to review decisions.
“There’s going to be a big question as to how FWA deals with really small employers and we’re already getting queries from companies that operate on shifts,” he says.
Sparke Helmore partner Tim McDonald suggests the most likely course of action for an unhappy worker is to launch action under anti-discrimination laws.
Dent agrees and says there have been many discrimination cases that have found that parents or carers have been discriminated against. She says disgruntled employees may also appeal to the Fair Work Ombudsman for help on the issue.
McDonald says the fact that workers’ right to access flexible working arrangements will now be better advertised under the NES will mean a big take up among employees.
“What we’ve seen over in the UK is that 72% of people who are eligible to use these provisions have done so and I think we’ll see a similar thing here.”
He says companies need to be prepared and have a system under which these claims can be received, tracked and dealt with in a timely fashion.
Employers may also need to consider introducing added flexibility into their labour arrangements and having policies to cover this, such as a working from home policy.
One question that many employers will need to wrestle with is: how much detail should go into the reasons behind the refusal of a flexible work request?
Peter Vitale says it’s there is no easy answer. “You’ve got to strike a balance. There’s no doubt you don’t want to get to the point of writing up the evidence for a claim against yourself, but by the same token you’ve got to put enough in there to satisfy the “reasonable business grounds” test.”
His advice is to be succinct and deal with the facts as they relate to the business.
“Be sure to steer away from individual circumstances relating to that employee,” Vitale says.
The rest of the NES
To ensure entrepreneurs are not caught out by other parts of the National Employment Standards, let’s go through the NES one at a time.
Maximum weekly hours
As under previous legislation, the standard is a 38-hour week for a full-time employee.
But one important change on this issue is around the concept of averaging – unlike current arrangements, the maximum weekly hours for an employee cannot be averaged over a 12 month period, although averaging provisions may be included in a specific award.
As is possible now, an employer may ask a staff member to work “reasonable additional hours”. Factors to be considered when determining whether hours are reasonable include:
The employee has the right to refuse to work additional hours if the request is unreasonable.
Parental leave and related entitlements
Another area with a few subtle changes that really bears watching. As is currently the case, employees can request 12 months unpaid parental leave – the only difference is that this has now been extended to same-sex couples.
In addition, employees can now request an additional 12 months parental leave. This must be done via a written request made at least four weeks before the end of the original leave period. An employer can only refuse on those famous “reasonable business grounds”.
Peter Vitale says the new provisions will be hard for employees and employers alike.
“I think a lot of people were surprised about this. It’s a lot of time for someone to be out of the workplace and for them to be hopeful about simply slotting back into their career as it was before.
He says the impact on business will come down to a company’s individual circumstances and their talent management needs.
But he does warn that for many businesses, it’s going to be a very difficult request to refuse “if you’ve had someone out of the workforce for 12 months and you’ve managed it”.
James was the editor and publisher of SmartCompany and LeadingCompany for five years. He is now the Australian Financial Review‘s companies & markets editor, and a former BRW editor.
