Welcome to the September 2024 edition of the McArdle Legal Newsletter. Much has occurred since our last edition. There has been a change in NSW Government, with Nathan Ree’s taking over from former Premier Morris Iemma in early September 2008.

The indications are that he and his Attorney General are more inclined to transfer industrial powers to the Commonwealth than previous decision makers. We will follow that development with great interest in future editions.

In this edition of the newsletter, we examine:

• The debate on flexible working conditions;
• The case of Australian Workers’ Union of Employees, Queensland v Etheridge Shire Council [2008] FCA 1268, which found that a Local Council is not a “constitutional corporation”. This could resurrect the unfair contracts jurisdiction in NSW for Senior Staff in Local Government;
• We also examine the prosecution of Tristar Steering and Suspension Ltd by the Workplace Ombudsman in the Federal Court, and the Courts refusal to establish a “right to the sack”.
  We hope that all friends of the firm find the following information helpful.

Flexible working conditions

Flexible working conditions have recently been the subject of much discussion. This has primarily occurred since
Prime Minister, Kevin Rudd, and Minister for Workplace Relations, Julia Gillard, released the 10 new National Employment
Standards (NES). The NES are a key element of the Rudd Government’s new modern industrial relations system and will commence from 1 January 2010. As we have observed, this new list is all but identical to the Howard Workchoices “list” of minimum standards.

One of the new NES, concerns “requests” for flexible working arrangements, which is promoted as a major change. Essentially, if an employee is a parent, or has a responsibility for the care of a child under school age, they may “request” from their employer a change in working arrangements, for the purpose of assisting them to care for the child. The inference is that they could not do so before.

In order to “request” flexible working arrangements, the employee must make the request in writing and must set out details of the change sought and the reasons for the change. The employer must give the employee a written response to the request within 21 days.

If the employer refuses the “request”, they must provide reasons for the refusal. An employer may only refuse a request on reasonable business grounds. Furthermore, if a request is refused on reasonable business grounds, it will also be open to the employer or employee to suggest a modification, which might be more easily accommodated by the employer.

What reasonable business grounds includes, will not be formally defined. However, factors that may be relevant to determining what reasonable business grounds are in a particular case, could include the cost of accommodating the employees request, the employers ability to reorganise work arrangements and the business needs of the employer.

It is probably being a bit of a spoil sport to suggest that you could have done all of this before. One has to observe, that the entitlement to “request” anything is not all that new.

What are Flexible Working Conditions?

Flexible working conditions provide employees and employers with opportunities to work outside traditional workplace systems. Essentially, employers and employees work together to agree on: the times the employees work; where they work from and whether they work a full week or not.

These types of arrangements may assist businesses to manage their workforce, in order to encourage greater workforce participation. There are no set boundaries on which conditions should be implemented. Each organisation may form a set of flexible working conditions which suit both their employees and the business.

Types of Flexible Working Conditions

Flexible working conditions may consist of a number of arrangements, such as:
Part time work – involves working less hours than standard full time weekly hours. This may include a few days per week, two days one week and three days the next week or ten days worked over a three or four week period.

Job sharing – where two people share the roles and responsibilities of one full-time equivalent job.

Working from home – involves working from home, or anywhere other than the normal workplace. May involve telecommunications technology to perform the functions required.

Part year employment (unpaid leave or purchased leave) – a number of weeks/months off work on unpaid leave or extra leave purchased for proportionate salary. Purchased leave is leave without salary, funded by salary deductions occurring over a 12 month period. The deductions are set aside and made available as salary during a period of leave without pay. These are taken in addition to normal leave entitlements. Employees receive 88%, 90% or 92% of usual pay each pay period, including while not at work.

A career break scheme – allows an employee to take a maximum of 12 months continuous leave, either leave without pay or purchased leave.

Flexible non-core hours – where employees must work at specified ‘core’ times (ie 10 – 2:30), but other hours are flexible upon negotiation with manager/director.

Phased retirement options – allows the employee to gradually phase out of working life. This enables organisations to implement a better knowledge transfer.

Other Groups

While the NES protect parents of small children, there are other groups which are said to benefit from access to flexible working conditions. For example, due to an ageing labour force, there is a growing shortage of workers in many occupations. Flexible working conditions would greatly benefit baby boomers who wish to remain in the workforce rather than retire, and thus benefit the workplace.

Legislation

The Workplace Relations Act 1996 (Cth) (the Act) will regulate the provision of flexible work practices. Despite the tonnage of newsprint about to be expended on what a big shift this is, the change from Workchoices will be almost zero . Once the NES come into force, an employee will not be required to work more than 38 hours per week, plus reasonable additional hours (like now). The Act will also guarantee eligible employees ten days of paid personal/
carer’s leave per year and up to two days of unpaid carer’s leave per occasion (like now). An employee will also be able to refuse a request to work on a public holiday, where they have reasonable grounds for doing so (like now).

The Act will also prohibit an employer from terminating an employees employment for reasons including: family responsibilities and pregnancy; absences from work during maternity leave or other parental leave (like now). Anti-discrimination law may also be relevant when an employer considers flexible working practices. Federal, State and Territory anti-discrimination legislation – such as the Anti Discrimination Act 1977 (NSW) and the Sex Discrimination Act 1984 (Cth) – prohibit discrimination on several grounds, including sex, race, disability and age. This includes,
during applications for employment, termination and regression.

McArdle Legal Employment Lawyers
Level 13 276 Pitt Street
SYDNEY NSW 2000
Phone: 02 8262 6200