If you have significant caring responsibilities you will need to talk with your employer about them to gain support. As your caring responsibilities may affect your ability to do your work in the same way as someone else without such responsibilities, you may feel anxious or concerned about this and even fear that you will lose your job or have to give it up. You may want to negotiate shorter hours, set hours, leave and/or flexibility at work.
From 1 January 2010, employers and employees in the national workplace system are covered by the National Employment Standards (NES).
Under the NES, employees have certain minimum conditions. Together with pay rates in modern awards (which also generally take effect from 1 January 2010) and minimum wage orders, the NES makes up the safety net that cannot be altered to the disadvantage of the employee.
The NES include minimum entitlements to leave, public holidays, notice of termination and redundancy pay.
In addition to the NES, generally an employee’s terms and conditions of employment can come from a modern award, agreement, pre-modern award and state or federal laws.
- Maximum weekly hours of work
- Request for flexible working arrangements
- Parental leave and related entitlements
- Annual leave
- Personal/Carer’s leave and compassionate leave
- Community service leave
- Long service leave
- Public holidays
- Notice of termination and redundancy pay
- Fair Work Information Statement
What are reasonable business grounds for refusing a request?
The Fair Work Act 2009 does not provide a definition of what constitutes reasonable business grounds for refusing a request.
However, factors that may be relevant could include:
- the effect on the workplace and the employer‘s business of approving the request, including the financial impact of doing so and the impact on efficiency, productivity and customer service;
- the inability to organise work among existing staff;
- the inability to recruit a replacement employee or the practicality or otherwise of the arrangements that may need to be put in place to accommodate the employee‘s request.
The NES do not require the employer to choose between granting an employee’s request in full or refusing the request. Rather, employers and employees are encouraged to discuss their working arrangements and, where possible, reach an agreement that balances both their needs.
Greg would like to start work at 10am, four days a week, to enable him to take his three year old son to pre-school. He submits a written request to his employer setting out the reasons for requesting the change in hours. His employer considers the request, but is unable to agree, as Greg would miss an important nationwide teleconference each morning.
However, instead of simply refusing the request, Greg’s employer discusses the situation with him. They agree to an arrangement where Greg will start work at 10am, four days a week, and participate in the teleconference by phone hook-up before he leaves home. He will attend in person the most important weekly agenda-setting meeting.
Greg’s employer gives him a written response, setting out details of the reasons for the refusal of the initial request, as well as a statement of the revised agreed arrangements.
The business case for family friendly work practices
Organisations with best practice work and family policies report a range of positive effects including higher retention rates, better morale, increased return rates from parental leave, higher productivity, fewer workers compensation claims, easier recruitment of high quality applicants, less industrial action, low levels of absenteeism and better customer satisfaction.
Anti-discrimination laws NSW laws
Anti-Discrimination (Carers' Responsibilities) Act 2000 (NSW) protects working carers from discrimination. Discrimination includes unfair treatment, harassment, dismissal or threatened dismissal by anyone in your workplace. It is also against the law to treat you unfairly because someone thinks you have caring responsibilities now, did have in the past or will have in the future, or because of actual caring responsibilities in the past or future.
Under the Act, employers must reasonably accommodate the caring responsibilities of their employees unless they can show it would cause them unjustifiable hardship. For examples, see our Fact Sheet Your Rights at Work.
Concerns about discrimination on the grounds of carers' responsibilities can be taken to the NSW Anti-Discrimination Board.
Commonwealth anti-discrimination laws - Sex Discrimination Act 1984 (Cth) and Disability Discrimination Act 1992 (Cth) also protect carers.
Concerns can be taken to the Human Rights and Equal Opportunity Commission (HREOC).
General tips for negotiating with your employer
Regardless of the system under which you are employed it is important to know your rights at work as a carer and the business case for family-friendly work practices outlined above. Knowing this means you can positively frame your request for support. If you approach your employer with a solution, not a problem, you are more likely to get a positive outcome.
Making an appointment
Do your employer the courtesy of making an appointment to talk about your caring responsibilities. Think about how long it will take - 10 or 15 minutes will probably be enough time - so ask for an appointment for that long. Let your employer know what the appointment is about.
The timing of your approach to make an appointment is important. It is better to approach your employer earlier in your shift rather than later. Wait until they have had a chance to clear their desk, though. After morning tea or the first break of the shift is an ideal time.
If your employer has a personal assistant or secretary, make the appointment through them. If you feel you may get some support, let this person know your situation as they may be able to back you up in your request. Employers often ask their assistants what they think of these requests.
Also be prepared for your employer to not want to make an appointment but to talk about your request there and then.
Explaining your caring responsibilities
Explain your caring situation positively and state that you want to be able to work and care at the same time. Don't apologise for caring. Privacy laws protect you and the person you are caring for. You do not need to go into detail about your relationship to the care receiver, medical conditions etc.
Explain that you have thought about your situation and ask your employer if he or she would consider what you need. Let your employer know that you have considered the repercussions of your request for your position and your colleagues and that your colleagues support you. For example, you could say something like "Joan is happy to cover for me if I have to take an extended lunch hour or leave work during my shift. I can make this time up later". Frame your request in such a way that it will cause the least trouble for everyone. Offer some other choices about how you may deal with your caring responsibilities.
Give a time frame for your request, eg. "I expect my caring responsibilities to last for xx number of months/years".
Juggling work and care
Continue to be open with your employer and colleagues about your caring responsibilities and the time you take off and make up. Review the situation with your employer and colleagues regularly and ask if anything could be done differently.
Employers must either approve or refuse an employee’s request in writing within 21 days. If the request is refused, the employer must also include reasons for the refusal. It is a contravention of the Fair Work Act 2009 if an employer does not respond according to these requirements.
There is no requirement for an employer to agree to a request for flexible working arrangements. However, the Fair Work Act 2009 empowers Fair Work Australia or some other person to deal with a dispute about whether an employer had reasonable business grounds for refusing a request. This generally only happens if the parties to the dispute have agreed in an employment contract, enterprise agreement or other written agreement for that to occur.
In addition, the Fair Work Act 2009 allows State and Territory laws to continue to apply to employees where they provide more beneficial entitlements than the NES in relation to flexible work arrangements. In Victoria, for example, provisions of the Equal Opportunity Act 1995 prohibit an unreasonable refusal to accommodate an employee’s responsibilities as a parent or carer.
An employee may also have remedies under relevant discrimination legislation, including the discrimination provisions under the Fair Work Act 2009, if an employee considers they have been discriminated against by the employer‘s handling or refusal of their request.
For more information on unlawful workplace discrimination, please see Fair Work Ombudsman Fact Sheet – Unlawful workplace discrimination.
For more information visit following websites:
Fair Work Ombudsman www.fairwork.gov.au