Advice No. 10/2009
Issued: December 2009
ACT PUBLIC SECTOR
Director’s General and Agency Heads
To provide advice on requests for flexible working arrangements as set out in the National Employment Standards (NES) in the Fair Work Act 2009 (FW Act) that will apply in addition to existing flexible working arrangement provisions in the current Template Agreement.
Timing and Critical Date
The requirement to comply with the NES will commence on 1 January 2010.
The NES, at s 65 of the FW Act, allows for an employee who is a parent, or has responsibility for the care of a child to request the Agency for a change in working arrangements to assist the employee to care for the child if the child:
is under school age; or
is under 18 and has a disability.
Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.
The employee is not entitled to make the request unless:
for an employee other than a casual employee—the employee has completed at least 12 months of continuous service with the Agency immediately before making the request; or
(b) for a casual employee—the employee is a long term casual employee of the Agency immediately before making the request and has a reasonable expectation of continuing employment by the Agency on a regular and systematic basis.
Note: 12 months continuous service will include service prior to 1 January 2010.
The request by the employee must:
(a) be in writing; and
(b) set out details of the change sought and of the reasons for the change.
The Agency must give the employee a written response to the request within 21 days, stating whether the Agency grants or refuses the request.
The Agency may refuse the request only on reasonable business grounds and in such cases the written response must include detailed reasons for the refusal.
Implementation of the New Entitlement
As set out in the Explanatory Memorandum to the Fair Work Bill 2008, reasonable business grounds may include: financial impact; impact on efficiency, productivity and customer service; inability to organise work among existing staff; inability to recruit a replacement employee; the impracticality of the arrangements that may need to be put in place to accommodate the employee’s request; and planned structural changes.
Agencies will need to be able to demonstrate that they have made sufficient efforts to determine the availability for changed working arrangements for the applicant.
The NES aspire to co-operation in the workplace so if an application for a changed working arrangement cannot be met initially, it should trigger a discussion with the applicant to determine whether they can possibly alter their original request. Also, an application may trigger other conversations with members of the business unit to determine if other employees may be in a position to change their own working arrangements to accommodate the original applicant’s request.
Consideration of applications for a flexible working arrangement must be determined on a case-by-case basis taking into account the requirements of the business unit at the time of the application.
It would be advisable to include ‘start’ and ‘end’ dates for any agreed flexible working arrangement in the necessary written response.
The FW Act does not provide a definition of the term ‘disability’. However, the Commonwealth Disability Discrimination Act 1992 and the ACT Discrimination Act 1991 both provide relevant definitions.
For further information on this advice please contact the Workplace Relations Section, Public Sector Management Group, Chief Minister’s Department.
Commissioner for Public Administration
Document Name: NES: Requests for Flexible Working Arrangements
Prepared by: Senior Manager, Workplace Relations, Office of Industrial Relations
Version: Number 1
Feedback to: email@example.com
Issue Date: December 2009
Chief Minister and Treasury | Canberra Nara Centre
GPO Box 158 Canberra ACT 2601 | phone: 132281 | www.act.gov.au