There have been a couple of cases recently which put the onus squarely on your employer to be flexible in these situations, plus the NSW govt is supposedly promoting family friendly workplaces.
The two decisions discussed below carry a fair bit of weight now so you should be able to stand up for your current work arrangement. It would not be good to have to go the unfair dismissal route to gain such recognition so if your employer is able to be persuaded that would be better. You could get backing form the union to negotiate or you could go through a community legal centre which might be able to draft a letter setting out the need for the employer to be flexible. If you want more details of these and the state govt position please contact me again.
The decision in Schou v State of Victoria by the Victorian Civil and Administrative tribunal seems to extend the rights of employees with family responsibilities.
Employers faced with requests for alternative work arrangements to accommodate an employee's family needs must be prepared to take reasonable steps to assess and implement requests. Technology is providing the alternative and affordable means of accessing the workplace from home. These technologies need to be considered by employers when faced with requests by employees.
In 1996 Ms Schou's supervisors had agreed that the best way to cope with the demands placed on her by an ill child and her hours of work as a Hansard sub-editor was to install an modem at home so that she could easily do some work from there.
Despite the supervisors and information technology staff agreeing to this, the Dept did not implement the request. With strains at home, Ms Schou resigned. Her argument to the tribunal was that the dept's failure to implement the request constituted indirect discrimination. She was awarded $161,307.40 for economic loss.
An earlier decisions in a different tribunal have considered the employers obligations in similar cases and found that they must be more flexible in work and family cases.
The Equal Opportunity Tribunal of W.A. has found that the state government's health board guilty of unlawful discrimination because of it's refusal to reinstate a nurse on a part-time basis when she returned from adoption leave. The board said she could not job share the position and the woman was forced to accept a series of lower paid positions in order to fit in with her family responsibilities. The tribunal found that the reasons given for rejecting the job sharing proposal were "vague, ill-considered, superficial and had no objective basis. In
fact, a genuine and fair consideration of the proposal would have led to the conclusion that the particular job sharing proposal being advanced had considerable advantages which may well (and in our view probably would) have outweighed the disadvantages".
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