Flexible Work Arrangements – Responding Flexibly

Flexible working arrangements are certainly not new. However, the uptake of such arrangements was turbo charged with the emergence of the COVID-19 pandemic. The recent Productivity Commission Working from Home Research Paper (September 2021), shows that the percentage of Australians working from home jumped from 8% to 40% in the past two years. As such, going forward, the ‘new normal’ for workplaces is that requests for flexible working arrangements will become more common.

Employees in the New South Wales local government sector are generally covered by the Local Government (State) Award 2020 (Award) or an enterprise agreement, underpinned by the Award or its 2017 predecessor. The Award provides employees with at least 12 months’ continuous service with a right to request a flexible working arrangement in particular circumstances, such as, if the employee is the parent of a child who is of school age or younger, is a carer, has a disability, is 55 or older, or is experiencing violence from a member of their immediate family.

Agreed changes to work arrangements may address things such as working from home arrangements, make up time, time in lieu, leave without pay and job share arrangements. It is therefore important to ensure that the response to such requests is managed correctly, noting that an employer has the ability to approve the request, deny the request, partially agree to the request, or to agree to the request subject to specific conditions. However, the employer is only able to refuse the request in writing and on reasonable business grounds.

A recent NSW Industrial Relations Commission (IRC) decision has highlighted the potential pitfalls that can arise when dealing with flexible work requests, and the benefits of attempting to accommodate an employee by proposing alternate arrangements.

In NSW Nurses and Midwives’ Association v Secretary, Ministry of Health in respect of Northern Sydney Local Health District [2022] NSWIRComm 1001, a registered nurse in a permanent part-time role had requested to be rostered only on shifts across Friday, Saturday, Sunday and Monday on the basis that she had committed the other days to be the primary carer of her child. The employer had determined that they would be unable to accommodate the employee’s desired limitations for reasons including rostering fairness, the skill mix on shifts across the week, clinical supervision of the employee, and the difficulty in filling the working roster on the days the employee would be unavailable to work.

In the IRC, the employee’s union argued that the employee was the primary carer of her 14-year-old son, that her son had a number of schooling and extra-curricular commitments, that it was the employee’s policy that clinical employees providing services would be subject to a rotating roster and that wherever possible the employer accommodated informal requests. The employer explained to the IRC that the employer had granted a number of Temporary Individual Roster Arrangements in an attempt to accommodate the employee, and that the employer had offered flexibility to the employee as to the employee’s starting and finishing times, between Tuesday and Thursday, which the employee had declined.

In the circumstances, the IRC ultimately agreed with the employer and found that it was not appropriate to direct the employer to provide the employee with either the rostering accommodation sought by the employee, or, an alternate rostering accommodation more generous than the employer’s offer. This conclusion was largely reached on the basis the employer had made multiple genuine attempts to accommodate the employee with flexible start and finish times between Tuesday and Thursday.

Key takeaways

The decision reiterates that employers are entitled to decline requests for flexible working arrangements if they are not reasonable, but any request for a flexible working arrangement must be properly considered on its merits. Responses should be tailored to take into account the individual employee’s circumstances and, where possible, to attempt to accommodate or offer an alternative arrangement.

Care also needs to be taken when developing internal policies around flexible work arrangements, to make sure that they do not go so far as to create an imbalance between personal considerations of employees, as against the ability of an employer to dictate working arrangements needed to meet operational requirements.

Local governments should also bear in mind that trial arrangements are permissible. As such, it is open to agree to a request but subject to a review within a specified time frame to see whether the arrangement works, or whether adjustments to it might be required.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.