The Workplace Coach

I have a new starter who has informed me on her second day that she’s going to want to work part time just three days per week because she is a single mum with a four year old.  The role is a full time role, it was advertised as being full time, and at no point during the interview or offer and acceptance process did she mention that she only wants to work part time.  Do I have to let her move to part time or can I insist that she work full time?

Unfortunately this happens more often than you might think. I’ll give you the more formal advice below but let’s just spend a minute on what are we looking to achieve here. This is a new employee and I’m going to assume you spent time, effort and money on finding the best candidate.  Ideally, you would like to keep her now that you have found her, so lets maybe see what options we have for doing that while still being sure that the work gets done.

1. Is there anyone else who would like to pick up 2 days of work in that role? Look to other part timers who might like some extra work. Would the second ranked applicant be interested in two days a week?
2. Could your new employee perhaps work longer hours on the days that she is at work? Instead of working the standard 7.5 or 8 hours, she might be able to do 9 or 10 hours on the three days she is at work. Its still not a full time workload but it might work for you?
3. Perhaps she could do some hours remotely on the 2 days that she has her son? She might be able to find hours during the day, even outside of bandwidth, where she can get some work done.
4. Does the job actually need a full time person? Just because it’s been done that way historically doesn’t necessarily mean that it needs to continue to be a full time role.

Now it is a bit cheeky that its only two days in and she’s asking for flexible work arrangements when she didn’t raise it at all during the process.  It would raise some questions in my mind as to how open, honest and transparent she is and will be going forward.  That’s just me though and so back to your question…

“Do I have to let her move to part time or can I insist that she work full time?”

Let’s start by looking at the National Employment Standards (NES).  These include provisions for certain workers to be able to request flexible working arrangements such as moving from full time to part time. The categories of employees that may request flexible arrangements under the NES are:

1. Pregnant employees
2. Parents or adults responsible for the care of a child who is school age or younger
3. Carers as defined by the Carer Recognition Act 2010
4. Employees with disabilities
5. Employees who are 55 or older
6. Any employee who is experiencing family or domestic violence, or
7. Employees who are caring for or supporting an immediate family or household member who is experiencing family or domestic violence.  

There is one condition in the NES though (also noted in section 65 (2)(a) of the Fair Work Act 2009), and that is that full time and part time employees in one or more of these categories are only entitled to make a formal request for flexible arrangements if they have completed at least 12 months of continuous service with their employer immediately before making the request.

That said if you have an organisational policy or enterprise agreement that waives the qualifying period then you will need to take that into account. I have seen some workplace agreements that have reduced the qualifying period to six months, usually the duration of the probation period, and others that have removed the qualifying period completely.

If you want to take a hard line with this, even if the employee has a right to request flexible work arrangements having completed the qualifying period (which doesn’t apply in your case) then:   

1. The employee must make the request in writing, and
2. You must respond to the request in writing within 21 days of receiving it.

Lets be careful not confuse the ‘right to request’ with a ‘right to be granted’.  The entitlement is to be able to make the request, and procedurally you (as the employer) must genuinely have tried to reach an agreement with the eligible employee prior to responding. You might even consider some variation on what they’ve requested (such as four days a week instead of three) but if you are going to refuse the request outright, then it will need to be in writing and explain the grounds for the refusal. These have to be “reasonable business grounds” which are listed in the legislation as:

1. cost – the requested arrangements would be too costly for the employer
2. capacity – there’s no capacity to change the working arrangements of other employees to accommodate the request
3. practicality – it would be impractical to change the working arrangements of other employees, or take on new employees, to accommodate the request
4. inefficiency or impact – the requested arrangement would be likely to result in significant loss in efficiency or productivity, or have a significant negative impact on customer service.

Note that refusing the employee’s request usually means that you will now have a disgruntled employee coming in the office every day and they are unlikely to be giving the job their full effort and attention. In your case though, if that were to be the outcome, then you would have options to address the underperformance and/or attitude under your probationary process, assuming your new starters are required to complete probation.

The short answer to your question, based on the information you’ve provided, would be No, you don’t have to approve this request however not approving it could have flow on effects that will need to be managed. As you can see, it can be a bit of a minefield and these things can go sideways very quickly.  Employees will often get their advice from their friends and family and will come at you with a sense of entitlement which has no basis at law. 

Here at The Workplace Coach we love helping our clients manage the tricky situations that you don’t come across every day.  After more than 25 years in the people management business, there’s not a lot we haven’t seen. Hit up our website, leave us a message or book a call. Whatever your people challenge, we can help.