By Cecelia Herbert

Since 2009, Australian workplaces have been subject to The Fair Work Act that outlines National Employment Standards, which provides a Right to Request flexible work arrangements.  The aim of this Act is said to provide a framework for cooperative and productive workplace relations that serve both economic interests and promotes social inclusion.

I am no lawyer and do not offer legal advice in anyway, but here is a summary of the Right to Request Legislation, as outlined by the FairWork Obudsman.

An employee is only eligible to request this type of flexible working arrangements if they:

A)     Have been with their current employer for at least 12 months or are a casual employee who:

• has been employed regularly and systematically for at least 12 months; and
• is likely to continue working regularly

B) Meet one of the following criteria

• Are a parent or guardian of a child who is school age or younger;
• are a carer (as defined in the Carer Recognition Act 2010);
• have a disability;
• are 55 or older;
• are experiencing family or domestic violence; or
• caring for or supporting an immediate family or household member who requires care or support because of family or domestic violence.

To make a request, an employee has to:

• Ask their employer in writing;
• Give details of the change they want;
• Give the reasons why they are asking for the change.

Requesting Part Time work to care for a child or when returning from parental leave is specifically stated.

Employers must give employees a written response to the request within 21 days, stating whether they grant or refuse the request. A refusal of a request has to be based on business grounds, such as being too costly; if it is anticipated that the change will result in loss of productivity or efficiency; if it will have a negative impact on customer service; or if the arrangements with other employees cannot be changed.

If the employer refuses the request, the written response must include the reasons for the refusal.

However, there is no right of appeal included in this legislation, meaning that there are no options for employees who feel that their request has not been genuinely considered or sufficient effort has not been taken to accommodate their request.  If it falls in the ‘too hard basket’ there are not many options for people who have their request rejected.

Despite this legislation being around for quite some time, only 30% of people surveyed in 2012 by the department of education, employment and workplace relations AWALI survey indicated that they knew about their right to request.  These rates are even lower in the group of people who are eligible.

There is no question that we are making inroads when it comes to flexible workplaces, but embedded in this legislation appears to be an acceptance of many assumptions about the burden of flexible work on the employer and a reluctance to accept this change.

Firstly, this legislation puts the onus of responsibility onto the employee to make a request for flexible work arrangements.  It also specifically outlines who is eligible and who is not.  This is contradictory to best practice research[1] which clearly states that if people are to work flexibly without incurring a career penalty, business needs to offer these work options as a standard business practice.  This means that eligibility for flexible work is based on the requirements of the role, being available to anyone for any reason.

Secondly, while this legislation means that business needs to take requests for flexible work seriously, it has made little impact on the proportions of people making requests.   In fact, the rates of requests in 2012 were slightly lower than in 2009[2].  It also appears that it has done little to boost men’s access to flexible work, as patterns of request-making remain highly gendered:  43 per cent of eligible women (mothers with pre-schoolers) made a flexibility request, compared to 19.8 per cent of similar fathers.

It has also done little to motivate those who wish to work flexibly but are not asking for it:  a quarter of employees in the 2012 AWALI survey indicate that they are not happy with their current arrangements, but have not requested flexibility. Many of these ‘discontented non-requesters’ say that flexibility is simply not available to them, either because they are not convinced their employer will allow it, their job does not allow it, or flexibility is simply not possible.  Given that the majority of requests (62%) are fully agreed to by employers, it seems that most people who ask for it, get it.  It makes sense that if you think your request will be rejected and there is a real risk of backlash from your manager for asking, then why would you bother?  The 100% Project ‘Men at Work’ research[3] also shows that men are often reluctant to make these requests, as it is not seen as socially acceptable for them to do so.

Thirdly, this legislation refers only to formal flexible work arrangements.  However, having a set arrangement does not appear to be very flexible.  Flexible work is all about the ability of people to make choices that influence when, where and for how long they work[4].  This autonomy is often reflected by informal or ad hoc flexible work arrangements, which are often not a result of formal arrangements, but a product of a flexible work culture.

Finally, this legislation appears to reinforce the assumption that flexible work arrangements are employee benefits – an exception, not the rule[5] .  This assumption is in direct contrast to the plethora of evidence that shows positive benefits for both business and individuals.

It is explicitly stated that businesses might consider flexible work arrangements to be a threat to productivity or customer service, encouraging business to look for reasonable business grounds to reject flexibility.  This is despite the evidence that tells us that the potential for growth by embracing flexibility is greater than the threat posed by allowing it in.

It is clear that these legislative changes alone are not enough to stimulate real changes in access to family friendly work options. 

Compliance cannot be mistaken for providing the sufficient framework for creating a flexible work culture.  While the Right to Request legislation appears to protect people’s rights at work on some level,  creating a situation where people have to ask, provide the right reasons and be the right type of person will not lead to outcomes of fairness and equality.  To achieve this, we need to approach flexible work options through a lens of opportunity, rather than risk and proactively encourage flexible work cultures, as opposed to waiting for requests.