News and Events

The Employment Relations (Flexible Working Arrangements) Amendment Act 2007 comes into force on 1 July 2008 and will provide a statutory right to employees who meet specified criteria to request a variation of certain terms and conditions of their working arrangements because they provide care to another person.

Following a request for a variation to working arrangements, an employer has certain obligations in relation to the request.  The employer must deal with such requests as soon as possible but no later than three (3) months after receiving the same.

The employee may make a request if the employee has been in employment for six (6) months and is responsible for the care of any person.  The request must be in writing and specify the variation of the working arrangements requested and whether the variation is permanent or for a specified period of time.

The employer must notify whether the request has been approved or refused.  There are a limited number of grounds upon which an employee may refuse a request, and these are as follows:-

1. An employer may refuse a request only if the employer determines that:-

a. the employee is not eligible to make a request under the Act; or

b. the request cannot be accommodated on one (1) or more of the grounds specified in subsection (2); or

c. both.

2. The grounds are:

a. inability to reorganise work among existing staff;

b. inability to recruit additional staff;

c. detrimental impact on quality;

d. detrimental impact on performance;

e. insufficiency of work during the periods the employee proposes to work;

f. planned structural changes;

g. burden of additional costs;

h. detrimental effect on ability to meet customer demand.

3. However, an employer must refuse a request if:-

a. the request is from an employee who is bound by a collective agreement; and

b. the request relates to working arrangements to which the collective agreement applies; and

c. the employee's working arrangements would be inconsistent with the collective agreement if the employer were to approve the request.

The grounds on which an employer can refuse a request are limited and we suggest it prudent for both employees and employers to take legal advice if any disputes arise.

The legislation does outline a process to be followed should a dispute arise.  Initially, a labour inspector will attempt to reach a solution and failing that mediation will take place.

It will be interesting to see what impact the legislation has.

Please remember, this information is designed as a guide only and shouldn't replace the advice of you legal professional.  We welcome your comments: damien.pine@awslegal.com