Q&A with Kristie Burt & Malvin Khaira
Q: What are my obligations to provide flexible working arrangements?
A: It will depend on the reasons for the request for such flexible working arrangements. It is also important to note that any employee (including a casual worker engaged on a regular and systematic basis) who has been with you for at least 12 months can make such a request.
Requests for flexible working arrangements and the circumstances in which they can be made are provided for in the National Employment Standards (NES).
Examples of employees who may request a change to their working arrangements include:
- A parent or a person with responsibility for a school aged child (or younger);
- A carer as defined in the Carer Recognition Act 2010 (Cth);
- A person with a disability;
- A person of 55 years of age (or older);
- A person experiencing violence from a member of their family or a person providing support or care to a person experiencing violence from their family.
Some common flexible working arrangements might include changes to hours and/or patterns of work or to the location of work, based on their reasons for the request being made.
From your perspective as the employer, you can only refuse a valid request on ‘reasonable business grounds’.
A recent example from the Fair Work Commission where an employer had reasonably refused a request for flexible work arrangements on business grounds involved a request for changes to working arrangements and additional leave for school holidays. In this matter, the employee (24 years old), following the death of her mother, took over the primary care of her younger sister (11 years old).
Negotiations followed between November 2018 and May 2019 with the employee requesting a change to her working hours and additional leave during school holidays. The Employer declined this request on the basis that the hours requested were not reasonable as additional staff are required during the busiest times of the day, being opening and closing time, and that the practice also employed other but proposed an alternative arrangement where the employee could return to her full-time role, accept casual employment or work part-time hours.
In June 2019, the Employee requested a separation certificate stating that her employment had been terminated. The reason for termination stated in the certificate was voluntary termination which then resulted in the Employee making an application to the FWC for constructive dismissal.
Ultimately, based on the facts, the FWC noted that an employer must consider all reasonable requests and in this matter did not unreasonably refuse the employee’s request and had met all of its obligations to respond appropriately.
To read the decision, click here.
Q: I have received a letter from a solicitor who says I have 7 days to make a payment to a contractor but I don’t agree that the works completed justify payment. Do I need to pay?
A: Depending on the type of letter, it is important to firstly read the letter to see what it says. Malvin and Kristie of MBA can look at the letter and provide you with basic guidance as to what the letter means for you.
If it is a letter of demand or a payment claim under the SOPA, you will need to action it immediately and within the timeframe specified. If a response is required within 7 days, you should make it a priority to seek advice and to respond within the prescribed timeframe.
If you do not agree with the contents of the letter or where you feel that the total payment is not due and payable, putting your reasons down on paper and providing supporting evidence to justify these reasons can be useful in helping to resolve the dispute.
It is better to respond and provide your reasons as to why you haven’t or won’t pay, than to not respond and potentially face further legal action against you for the recovery of the monies.
It is our recommendation that you action the letter appropriately and that you also seek independent legal advice, particularly for a large and/or complex arrangement.
Q: What is the difference between an employment contract and an enterprise agreement? I am just weighing up my options as to which one is best for my business?
- Employment Contract
An Employment Agreement sets out the terms and conditions of employment as agreed between the employer and employee. Where applicable, it will provide reference to those terms and conditions provided for in an Award but must, at all times, ensure that is does not provide for lesser entitlements than those prescribed in the National Employment Standards (NES). Employment contracts for an organisation will usually be consistent in terms of the content but may include specific entitlements which have been negotiated between the employee and employer which may not apply to other employees.
- Enterprise Agreements
An Enterprise Agreement is a document that is usually tailored to suit the needs of a particular organisation (or an industry) which takes into account those minimum safety nets provided by an Award and the NES. There need to be at least two employees to allow for an enterprise agreement to be created. The Agreement will then need to go through a pre-approval process which also takes into account bargaining between the employer and the employees (or their representatives) before it is agreed. Once it is agreed, it is then lodged for approval with the Fair Work Commission.
It is our opinion that before you choose one option over the other, that you seek advice about the type of employment contract/agreement that will be best for your business. As a minimum, having a simple document which sets out the basic terms and conditions is usually sufficient for most businesses. Please note that there is also no mandatory requirement to have an enterprise agreement.
Q: I have a worker who is not pulling his weight on-site and continually bullies another worker who is much younger. Is there anything I can do to sort out this behaviour because I am worried about a bullying claim being made?
A: Unfortunately, bullying and harassment on site is something that does occur and it needs to be dealt with immediately. This does not mean instant dismissal (unless there are grounds for doing so) but there are things that you can do to address this behaviour from both a HR and WHS perspective. For example, as a PCBU under the WHS legislation, you have an obligation to provide a safe workplace for your employees.
Firstly, do you have a policy in place to deal with claims of bullying and harassment? This policy will usually define what constitutes bullying or harassment but will also set out the process in which such claims can be dealt with. Where you don’t have such a policy in place, do not stress – it is easy to develop and implement new policies into your organisation at any time. If you need assistance with preparing such a policy, please feel free to contact us.
The next step would be to address the behaviour with the employee in question. Where you have a policy in place, please follow the process as described in your policy. Where there is no policy, your next step would be to investigate the complaint (this might be based off a complaint made by the younger workers or instigated by you as a witness to such behaviour).
The next step might be to performance manage this employee. Please note that performance management needs to be undertaken properly, particularly if you are seeking to terminate the employee as a result of the behaviour.
In our opinion, bullying and harassment in any workplace is unacceptable behaviour and needs urgent attention.