Older Workers and Requests for Flexibility: A Weak Right in the Face of Entrenched Age Discrimination

Abstract

In 2013, the right to request flexible work arrangements was extended to include employees who are 55 years or older, with a refusal by an employer of such a request in theory available only on the basis of ‘reasonable business grounds.’ This expansion of the right to request is one of a number of different strategies implemented with a view to enhancing the workforce participation of older Australians. This paper examines the scope of the right to request and how it operates with respect to older workers as part of the National Employment Standards in the Fair Work Act 2009 (Cth). The paper also examines the gender dimension in the making of requests and in the utilisation of flexible work practices. Since the ‘right’ exists as merely the subject for negotiation at a workplace level, rather than an enforceable claim, this paper contends that it is unable to overcome persistent and prevalent age discrimination in employment. The paper argues that a review process and independent oversight are required in order to bring about the attitudinal change necessary if the right to request flexible work arrangements is to operate as a viable means of providing constructive opportunities for older workers to maintain their workforce participation.