It is all in the flexicution: Flexible working arrangements

What does an employer do in circumstances where it has granted flexible working arrangements and it is no longer able to accommodate the employee? 

The NSW Industrial Relations Commission (NSW IRC) in Construction Forestry, Mining and Energy Union (New South Wales Branch) v South Western Sydney Local Health District [2016] NSWIRComm 1047 (Painter Case) dealt with this very issue. 

This case is a good reminder for employers about what they should do if circumstances arise where flexible working arrangements need to be revoked.

In the Painter Case, two painters had been working 6am to 2:30pm.  This flexible working arrangement had allowed them to collect their children from primary school for the last eight years.

In 2015, Liverpool Hospital (the Hospital) moved them to a 7am to 3:30pm roster (in line with most of the Hospital’s trade staff) as part of the Hospital’s push to boost response times and efficiency.  The painters argued that the changes would require them to pay for childcare and that their hours of work did not have any practical difference on the Hospital as painting was not “emergency response work.”  In addition, they argued that the changes were discriminatory against people with carer’s responsibilities.  In response, the Hospital argued that the measures were necessary because the Hospital was one of the busiest in NSW and recorded an $8.2 million deficit in the 2014-15 financial year. 

Taking into account the parties’ submissions, the NSW IRC confirmed that there was an “overwhelming principle” that employers have a “long established right of management to allocate and arrange work and for employees to respond to reasonable management requirements and directions.”  The NSW IRC ruled in favour of the Hospital on the basis that the painters had failed to show the hours proposed by the Hospital meant they were performing work that was unfair, unjust or unreasonable.  The NSW IRC directed the employees to perform the new hours as directed by the Hospital.

This confirmation of the basic principle that employers have the right to allocate and arrange work in accordance with its needs is welcome news to employers.  Employers should ensure that revoking long established flexible work arrangements does not produce an unfair or unjust outcome and should otherwise take the necessary steps to ensure work is performed as required to meet operational demands. As a matter of best practice, employers should communicate the intention to revoke the flexible working arrangements as soon as possible to the employee and in writing (with detailed reasons) and provide the employee with as much notice as possible about the change.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

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