Resources: Blog

Flexible working arrangements

Blog
|

It is all in the flexicution

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

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.

Similar articles

Workplace Relations Review

Cases and Legislation June 2020

Cases and Legislation June 2020 NEWS ALERTS NSW Work Health Safety Legislation Amendments The Work Health and Safety Act 2011 (NSW) (WHS Act) was recently amended giving effect to some of the recommendations of the 2018 national review of the modern WHS Act. ...

Read more...

Workplace Relations Review

Cases and Legislation February 2020

Cases and Legislation February 2020 Post-Employment Conduct “Ex-employee fined for contempt after breaching Court undertakings" Maxilift Australia Pty Ltd v Donnelly [2020] SASC 8 Executive summary A former sales manager has been fined $7,115 and found in contempt of...

Read more...

Workplace Relations Review

Cases and Legislation October 2019

Drunkenness and vomiting at after work drinks did not justify employee's dismissal.

Read more...

Salary reduction brought employee under high income threshold

Below not above

The COVID-19 (coronavirus) pandemic has significantly impacted the financial stability of many businesses. Employers have had to make difficult decisions and implement different measures to ensure the ongoing viability of their businesses. Some of these measures have included asking employees to agree to temporary reductions in their hours of work or to a reduction in their remuneration.

Read more...

Company vicariously liable for injury resulting from skylarking supervisor

All in good fun

Enjoying the company of your colleagues is something most people hope to find in the workplace. It can make work much more enjoyable and lead to lasting friendships. However, fun in the workplace can cross a line when it takes the form of dangerous skylarking or roughhousing.

Read more...

Managing employee conduct and behaviour in the workplace

Draw the line

Managing employee conduct and behaviour can be a challenge. The question of what is appropriate and what is not appropriate in the workplace will depend on a variety of factors, including the industry in which the employees work, the overall culture of the workplace and community standards at any given time.

Read more...

Let's talk

please contact our directors to discuss how ouR expertise can help your business.

We're here to help

Contact Us
Let Workplace Law become your partner in Workplace Relations.

Signup to receive the latest industry updates with commentary from the Workplace Law team direct to you inbox.