In modern society, women are bombarded with the idea that we can ‘have it all’. However, juggling full time work and parental responsibilities can be a stressful situation for even the most organised of mums.

Many working mums are changing up their employment arrangements from the typical 9am – 5pm, with many electing for a flexible working arrangement to help them achieve a work-life balance.

These arrangements have been found to be greatly beneficial in many workplaces, with working mums being able to be more focussed and efficient with their work, knowing they have only a particular timeframe in which to complete tasks.

Workplaces who offer flexible working arrangements to working mums are more appealing to prospective employees, who are striving to achieve the elusive work-life balance.

By choosing to provide these flexible working arrangements, employers can experience a higher retention of current employees whose family circumstances may change during their employment.

What makes a flexible working arrangement?

 

Flexible working arrangements are any of those which differ from the regular 9am-5pm, 38 hour full time weeks defined by the Fair Work Act 2009 (Cth) as the standard throughout Australia.

Working mothers are able to request flexible hours of work to allow for school drop-off and pick up times, change in patterns of work such as ‘split-shifts’ or a change of location to be moved closer to home.

Those who request such arrangements need to be employed for at least 12 months of continuous service immediately before making the request.

When can your employer refuse a flexible working arrangement?

 

The Fair Work Act 2009 (Cth) states that the employer must have reasonable grounds to refuse the request, such as;

  • The new working arrangements requested by the employee would be too costly for the employer;
  • There is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
  • It would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
  • The new working arrangements requested by the employee would be likely to result in significant loss of efficiency or productivity; and
  • The new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.

What can you do if you have been wrongly denied a flexible working arrangement?

 

In the event that an employer takes adverse action against an employee by virtue of him/her exercising a workplace right, for example requesting a flexible working arrangement, a claim may be available for the employee to make under the Fair Work Act 2009 (Cth).

General Protections provisions under the Fair Work Act 2009 (Cth) protect working mothers from being terminated or their duties being significantly altered due to the exercise of a workplace right concerning parental leave or a request for a flexible working arrangement.

The reverse onus will then be on the employer, to satisfy that the workplace right was not a reason in the decision maker’s mind at the time of the adverse action.

This is traditionally quite a difficult onus for an employer to discharge as the workplace right need not be the only reason for the adverse action, but one of the reasons in the decision maker’s mind when the adverse action was taken.

Working mothers may also make a complaint to the Victorian Equal Opportunity and Human Rights Commission under the Equal Opportunity Act 2010 in the event that they are discriminated against for pregnancy or breastfeeding.

If you are a working mother who has been discriminated against due to your request for flexible working hours, we recommend seeking legal advice.

*Please note that advice is general in nature only. 

Bianca Mazzarella

Bianca Mazzarella is a lawyer at McDonald Murholme.
Bianca Mazzarella

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