When working parents are struggling to balance remote learning and their own responsibilities as an employee during lockdown, employers often wonder what options are available for them to help their staff.
As each employee’s circumstances will be different, it is impossible to apply a blanket rule - so the best way for employers to assist their employees in managing their individual responsibilities during lockdown is to have a full understanding of the options available to them.
In this article we explore three key options for employers:
- Flexible Working Arrangements
- Schedule X – Pandemic Leave Award Provisions
- COVID-19 Long Service Leave Amendments
Flexible Working Arrangements
Requesting Flexibility for home schooling responsibilities
Working parents who have responsibilities for the care of children who are either school-aged or younger are entitled to request flexible working arrangements. This entitlement is available to both casual and permanent employees, with the only requirement being that the employee must have been employed by the employer for at least 12 months.
The request must be in writing, and outline the changes being requested by the employee - as well as the reasons for the change.
What should employers do when they receive a request?
The employer must provide a written response to the request detailing its decision, as well as the reasons for their decision within 21 days of the request being made.
Under section 65 of the Fair Work Act 2009, employers must take into consideration:
- the reasons for the requested change;
- the consequences for the employee if the request is refused; and
- any reasonable business grounds for refusing the request.
For employees covered by a Modern Award, additional obligations apply.
From December 2018, if an employee is covered by a Modern Award, employers must discuss the request with the employee and make a ‘genuine’ attempt to try and reach an agreement.
If the employer and employee cannot reach an agreement, the employer’s response must state whether alternative working arrangements are available (and detail those changes).
Reasonable Business Grounds for Refusal
Employers must have “reasonable business grounds” for refusing an employee’s request for flexible work. With the current lockdown and the increased number of employees working from home, it may be difficult for employers to assert that such a request is unreasonable.
Examples of reasonable business grounds include where the arrangement would be too costly, impractical, the employer lacks capacity to fulfill the request, or where the arrangement would likely negatively impact productivity.
Before refusing a request, Holman Webb Lawyers suggests obtaining advice tailored to the specific the needs of your business. Please don’t hesitate to get in touch with Holman Webb’s Workplace Relations Group if you require guidance on responding to an employee request for flexible work.
Schedule X – Pandemic Leave Award Provisions
The Fair Work Commission has reinstituted “Schedule X” pandemic leave provisions into several Modern Awards, providing annual leave flexibility for particular industries until 31 December 2021.
Under this Schedule, if an employee needs time off to fulfill their responsibilities, they may agree with their employer to take annual leave at half pay for double the amount of time. For example, for two weeks of annual leave the employee would be paid and deducted the equivalent of one week of annual leave. This arrangement must be reflected in a written agreement and kept in the employee’s records.
Check the Fair Work Ombudsman website for a list of Awards containing the pandemic leave provisions. If annual leave flexibility is not offered in the applicable Modern Award, there may be alternative leave arrangements that suit your employee and your business.
COVID-19 Long Service Leave Amendments
If an employee has accrued Long Service Leave, the COVID-19 pandemic special provisions allow greater flexibility for taking this leave.
These temporary amendments allow for the taking of Long Service Leave on shorter notice periods until 31 March 2022. It also allows Long Service Leave to be taken in two or more separate periods. It is important to note that these flexible arrangements are by agreement only (between the employer and employee).
Can an employer refuse to allow an employee to take Long Service Leave?
Provided that an employee is entitled to Long Service Leave, an employer may refuse if the needs of the employer cannot accommodate the employee’s request.
If this occurs, an employer must allow the employee to access their Long Service Leave as soon as practicable or, if the worker agreed to postpone the leave, from that agreed date.
With the ongoing lockdown in NSW, home schooling will be a continued issue for some employees. If you have any questions relating to the information in this article, or would like to speak with a member of Holman Webb’s Workplace Relations Group, please get in touch today!