Flex Your ‘Right To Request’

Flex Your ‘Right To Request’

As of 1 January 2010, eligible employees have the right to request flexible work options in Australia. The Australian Federal Parliament approved the National Employment Standards in 2009 and gave employers time to absorb the new federal mandates and mould their policies appropriately. Now it’s time to start flexing!

The National Employment Standards (NES) are designed to provide a legislative guarantee of 10 minimum workplace entitlements to all Australian employees. Employers must adhere to the standards or risk fines up to $6,600.

Here’s a Look at the 10 NES Entitlements…

  1. Maximum weekly hours of work – 38 hours per week, plus reasonable additional hours.
  2. Requests for flexible working arrangements – allows parents or carers of a child under school age or of a child under 18 with a disability, to request a change in working arrangements to assist with the child’s care.
  3. Parental leave and related entitlements – up to 12 months unpaid leave for every employee, plus a right to request an additional 12 months unpaid leave, and other forms of maternity, paternity and adoption-related leave.
  4. Annual leave – 4 weeks paid leave per year, plus an additional week for certain shift workers.
  5. Personal / carer’s leave and compassionate leave – 10 days paid personal / carer’s leave, two days unpaid carer’s leave as required, and two days compassionate leave (unpaid for casuals) as required.
  6. Community service leave – unpaid leave for voluntary emergency activities and leave for jury service, with an entitlement to be paid for up to 10 days for jury service.
  7. Long service leave – a transitional entitlement for employees who had certain LSL entitlements before 1 January 2010 pending the development of a uniform national long service leave standard.
  8. Public holidays – a paid day off on a public holiday, except where reasonably requested to work.
  9. Notice of termination and redundancy pay – up to 4 weeks notice of termination (5 weeks if the employee is over 45 and has at least 2 years of continuous service) and up to 16 weeks redundancy pay, both based on length of service.
  10. Provision of a Fair Work Information Statement – employers must provide this statement to all new employees. It contains information about the NES, modern awards, agreement-making, the right to freedom of association, termination of employment, individual flexibility arrangements, right of entry, transfer of business, and the respective roles of Fair Work Australia and the Fair Work Ombudsman.

These aren’t completely universal standards, however, so make sure you’re eligible.  If you fall under the national workplace system, then all of the entitlements apply to you. If you’re not sure that you’re covered, here is a breakdown of who is considered part of the system:

  • you are employed by a constitutional corporation (these are corporations that are trading or financial, usually Pty Ltd or Ltd companies)
  • you are employed in Victoria, the Northern Territory or the ACT
  • you are employed by the Commonwealth or a Commonwealth authority
  • you are a waterside employee, maritime employee or flight crew officer employed in connection with interstate or overseas trade or commerce.

If you’re not included in any of the above, but you are a parent of or  care for children under-school age, or a child under 18 who has a disability, you may request a “change in working arrangements”. This applies to both permanent and casual employees if you have continually worked for the same employer for the 12 months before the request or you are a long-term casual and have an expectation of continued employment.

The Two Part Request Process:

Part 1. The employee must make a request in writing the reason for the change (ie. how the requested change will assist the employee to care for their child); and the nature of the change (what you are suggesting).

Part 2. The employer has 21 days to respond to your request and they must identify whether the request is granted or refused. If it is refused, the response must explain the reasons why and the reasons must demonstrate that the refusal was made on “reasonable business grounds”.

A Few Holes in the System to be Aware of…

  • The Standard does not define what constitutes “reasonable business grounds”, however a body of Australian case law on family/carers’ responsibilities discrimination suggests that relevant issues will include (i) the nature of the role; (ii) the impact of the request on business/team operations; and (iii) associated costs as well as the benefit to the individual and the business (ie. turnover and productivity).
  • There is no capacity for a review of the employer’s reasons for refusal to ensure that they meet the “reasonable business grounds” test.  However, you may use an employer’s written response as the basis for a family/carers’ responsibilities discrimination complaint under State or Federal legislation.

What It All Means

With this move, Australia now joins an elite group of European nations that have adopted similar standards. Pioneered by the Netherlands, their own “right to request” has meant many Dutch workers now have the ability to voluntarily switch to part-time work.  And many hail these adjustments as a significant factor in the “Dutch Miracle” of low unemployment and stable economic growth.

Benefits for employees include better work/life balance; increased sense of control and, therefore, well-being; greater job satisfaction; and, greater loyalty, trust and respect towards employers.

Benefits for employers include increased employee satisfaction; higher staff retention rates; lower staff absences; improved talent, creativity and motivation of staff; and, becoming an Employer of Choice attracting a higher-caliber of  employee.

This is certainly a great step forward in embracing flexible work and the benefits that come with it. Stay tuned for posts that delve deeper into the new “Right to Request” and the issues surrounding it.

Have a look at a full version of the Fair Work Act 2009 here.

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