You might have already had your baby — but what about negotiating your return to work?
For many parents, this can be one of the biggest challenges yet, says Alison Dutton, Principal Solicitor at Labour Pains Legal; Employment Law Specialists.
A Right to Request
The right to request a flexible working arrangement is exactly that — a right to ask your employer for changes to your working hours to better accommodate childcare responsibilities.
However, this right is often seen as limited in practice. Employers can refuse requests on “reasonable business grounds”[1], which can be difficult to challenge.
This right is set out under Division 4, Part 2-2 of the Fair Work Act 2009. It allows employees with at least twelve (12) months of continuous service to formally request a “change in working arrangements”.
To make a request, it must be submitted in writing and clearly outline:
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the changes you are seeking
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the reasons for the request
Before submitting, it may be helpful to speak with your HR department (if applicable) or review any workplace policies around flexible work.
This right applies to employees who:
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have responsibility for a child of school age or younger, or
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have a child under eighteen (18) with a disability
Once your written request is submitted, your employer has twenty-one (21) days to provide a written response.
It is also recommended that you arrange a meeting with your employer after submitting your request. This creates an opportunity to discuss and negotiate a solution that works for both parties.
A Right to Refuse
If your employer refuses your request, there are unfortunately limited options available.
As long as the employer provides a written response within twenty-one (21) days explaining the reasons for refusal, there is little legal recourse.
You may be able to take the matter to the Fair Work Commission (FWC) under a dispute resolution clause in your:
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employment contract
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modern award
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enterprise agreement
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or the National Employment Standards (NES)
However, your employer must agree to participate.
It is important to understand that the FWC does not have the power to enforce flexible working arrangements. Instead, it can facilitate discussions and make recommendations in an attempt to help both parties reach an agreement. In some cases, the matter may remain unresolved.
Other Options
If your request for flexible work has been denied, there may be other avenues to explore.
You may be able to rely on federal or state anti-discrimination laws. In addition, the “general protections” under Part 3-1 of the Fair Work Act 2009 make it unlawful for an employer to take adverse action against you for making a request.
If you find yourself in this situation, it is worth seeking guidance. While they cannot provide legal advice, the Fair Work Infoline (13 13 94) can offer general assistance.
The Fair Work Ombudsman website is also a helpful resource, including templates to assist in drafting your request:
www.fairwork.gov.au
If your request has been denied or you need legal advice about your situation, you can contact Labour Pains Legal: Employment Law Specialists. They offer a free initial consultation and “no win, no fee” arrangements if your matter proceeds to litigation.
Further information can be found at our website: www.labourpainslegal.com.au
