New Rights for Carers – Flexi Work

The Employment Relations (Flexible Working Arrangements) Amendment Act 2007 comes into force on 1 July 2008.  The Act amends the Employment Relations Act to provide certain employees who care for others the statutory right to request flexible working arrangements.

The provisions create a framework for employees to negotiate with employers about working alternative hours, days and/or place of work if they care for "any person".

The Act also sets up a process for handling requests from employees for flexible working arrangements, and certain employees will have the right to ask and have that request listened and responded to.  To be eligible for the "right to request" an employee must have been employed by their employer for 6 months and be responsible for the care of any person.  When an employee makes their request, they must explain how the variation will help them provide better care for the person concerned.

Employers are able to decline these requests.  However, their reasons are limited by the new legislation to the following:

• Inability to reorganise work among existing staff
• Inability to recruit additional staff
• Detrimental impact on quality or performance
• Insufficiency of work during the period the employee proposes to work
• Planned structural changes
• Burden of additional costs
• Detrimental effect on ability to meet customer demand
• Undermining the terms of a collective agreement

An employer must refuse a request if:

• The employee is bound by a collective agreement;
• The request relates to working arrangements to which the collective agreement applies; and
• The employee's working arrangements would be inconsistent with the collective agreement if the employer were to approve the request.

If an employee believes that their employer has either wrongly determined that they are not eligible to make a request or has not followed the correct process then the first step is to refer the matter to a Labour Inspector.  If the employee is still dissatisfied after receiving assistance from a Labour Inspector, the employee may refer the matter to mediation.  If a solution is not reached at mediation, the employee may proceed to the Employment Relations Authority. 

If an employer receives a request for flexible work arrangements, they should keep a paper trail that records the consultation process undertaken and reasoning for decisions made in response to the request.  Employers should ensure they are seen to consult, consider and not make predetermined decisions.

The Act provides penalties for employers who breach flexible arrangement provisions.  Any employers who do not comply are liable to a penalty of up to $2,000 (imposed by the Authority), which is payable to the employee concerned.

If you have any questions about the flexible arrangements legislation, please do not hesitate to contact us.

For more information, please contact:

Erin Davies
Partner
t: +64 9 979 2177
m: +94 29 622 2300
e: Erin Davies

Last updated: 30 January 2008