Understanding the National Employment Standards & the Evolution of Flexible Working Arrangements in Australia

As we begin the new year, one of the most common discussions with our clients is about workforce flexibility. Flexible work arrangements have become a significant and evolving area within Australian employment law, reflecting the growing demand for a better work-life balance.

In a series of articles, we delve deeply into the nuances and intricacies of flexible work. This first article explores the origins of flexible working rights in the Australian context and their development within the National Employment Standards (NES). We provide insight into the NES’s purpose, legislative history, and how it governs flexible work arrangements for eligible employees.

The National Employment Standards (NES): A Brief Overview

Defining the NES

The National Employment Standards (NES) are a set of minimum entitlements under Australian law that apply to employees covered by the Fair Work Act 2009 (Cth) (FWA).

At present, there are 11 minimum employment entitlements. They are set out in Part 2-2 of the Fair Work Act.

The National Employment Standards (NES) was introduced into the Australian Parliament as part of the Fair Work Bill 2008. The second reading speech given by then-Deputy Prime Minister and Minister for Employment and Workplace Relations, Julia Gillard, on November 25, 2008. In her speech, Gillard emphasised that the NES were intended to set a clear, fair, and enforceable set of minimum employment conditions for all employees covered by the federal workplace relations system.

Minister Gillard described the NES as the foundation of fair work in Australia, designed to ensure that all employees would benefit from a universal set of basic rights. They were envisaged to maintain equity within the employment system, in response to the WorkChoices legislation that had previously dismantled many employee protections.

Importantly, the NES applies to all employees covered by the national workplace relations system, regardless of the award or agreement under which they work.

The Evolution of the NES

Over the years, amendments to the FWA have reflected Australia’s evolving workforce needs and societal values, with updates incorporating provisions related to family and domestic violence leave, parental leave, and flexible working arrangements. These updates reflect growing recognition of diverse employee needs and inclusive workplaces.

 

History of Flexible Working Under the NES

Origins of Flexible Work Rights in Australian Labor Law

Flexible work rights became part of the NES in 2010 with the Fair Work Act 2009. Originally, they were stated to address the evolving needs of Australia’s workforce, particularly those balancing work with personal obligations. The first version of the right allowed an employee who was a parent or primary caregiver of children under school age (or children with disabilities under the age of 18) to request flexible work. This early provision acknowledged the increasing need for family-friendly policies that allowed parents to balance work commitments with childcare responsibilities.

The Fair Work Amendment Act 2013 expanded these entitlements, allowing a broader range of employees to request flexible working arrangements. This included employees with family and caring responsibilities, employees with disabilities, and employees experiencing family or domestic violence. The 2013 amendment was a critical step in recognising the diverse challenges employees face in maintaining a balance between personal and professional responsibilities.

Expansion of Flexible Work Rights

The evolution of flexible working rights under the NES illustrates a growing acknowledgment of work-life balance as essential to workplace wellbeing and productivity. Under the NES, an eligible employee has the right to request flexible working arrangements if they meet certain criteria, including:

• Being a parent or primary carer of a child of school age or younger
• Caring for a family member with a disability
• Experiencing family or domestic violence
• Being aged 55 or older

This list of eligibility criteria highlights the need for flexibility in addressing both personal and family-related challenges in an increasingly complex society.

The utopian view of flexibility is that an emphasis on supporting employees in these roles recognises that maintaining a healthy work-life balance not only benefits individuals but can also positively impact organisational productivity, retention, and morale.

Types of Flexible Work Available Under the NES

Under the NES, an eligible employee is entitled to request changes to any of the following:

• Remote or Hybrid Work:
  • The option to work from home or alternate between home and the workplace.  This has become common during and after the COVID-19 pandemic.  It will be the subject of future articles under this topic.
• Adjusted Start and Finish Times:
  • Employees may request different start or end times to accommodate caregiving or other personal obligations. Such as school drop-offs or medical appointments.
• Part-Time or Job Sharing:
  • Employees may request to reduce their hours or share a position with another employee, allowing for flexibility without significantly impacting the business.
• Compressed Work Weeks:
  • Working longer hours over fewer days, enabling a four-day workweek, for example, while maintaining full-time status.
• Flexible Breaks:
  • Adjusting the timing or length of breaks during the workday to support personal responsibilities.

 

Eligibility and Considerations Under the NES

While employees have the right to request flexible working arrangements, not all employees are eligible to make such requests.

A request for flexibility must be in writing.

According to the NES (see Section 65 of the Act), only employees who have completed at least 12 months of continuous service are eligible. Casual employees, however, must have both 12 continuous service and “a reasonable expectation of continuing employment” to be considered eligible.

The NES (Section 65A of the Act) also sets forth specific considerations for employers when assessing flexible work requests. Employers must respond to written requests within 21 days and can refuse only on “reasonable business grounds”.

These grounds might include:

• Impact on Productivity:
  • If flexible arrangements are likely to significantly affect an organisation’s ability to meet productivity goals, this can form a basis for refusal.
• Cost Implications:
  • If accommodating the request would result in significant cost increases, employers may have reasonable grounds to decline.
• Customer Service and Team Cohesion:
  • If flexible work arrangements could hinder service delivery or disrupt teamwork, this may also be deemed reasonable grounds for refusal.

These provisions have been drafted in an attempt to strike a balance between supporting employee needs and recognising the importance of operational continuity for employers.

The recent Fair Work Amendment (Secure Jobs, Better Pay) Act 2022  introduced stronger enforcement options for the Fair Work Commission (FWC) to review disputes over denied requests, making it more challenging for employers to refuse flexible work requests without valid reasoning.

 

The Future of Flexible Work in Australia

We recommend that if your business model can encompass a flexible workforce then there are significant advantages in working constructively to address employee demands for flexibility.

Navigating Workplace Flexibility with Madison Marcus

Flexible work arrangements are becoming a core focus of employment law in Australia. Understanding the legislative landscape is essential for employers and employees. The NES and recent amendments, such as the Secure Jobs, Better Pay Act 2022, have introduced stronger rights and enforcement options for flexible work requests.

At Madison Marcus, our employment law experts assist employers in creating policies that comply with legislation while meeting operational needs. We also help employees understand their rights and negotiate arrangements that promote work-life balance.

For tailored advice and practical solutions, contact Madison Marcus. Our team can help you navigate the complexities of flexible work and stay ahead in a rapidly evolving regulatory environment.