Remember when ‘working from home’ was a novelty? Technology, evolving workplace expectations, and a global pandemic have accelerated this shift, and flexible work practices now form part of the modern workplace. In addition to working remotely, flexible work arrangements can encompass compressed work weeks, flexible hours, job sharing, and various other arrangements.
The benefits of flexible work practices can be twofold – employees enjoy a better work-life balance, while employers tap into a wider talent pool and often see increased productivity. Understanding the employer and employee rights, responsibilities, and considerations concerning flexible work arrangements, however, is essential to achieve these benefits and ensure fairness and balance.
The following information is general only and does not constitute legal advice. For advice relevant to your specific circumstances, we recommend consulting an experienced employment lawyer.
Rights for Employees to Request Flexible Work Arrangements
The legal right to request flexible workplace arrangements has recently expanded. Section 65 of the Fair Work Act 2009 (Cth) provides that employees may request a change in working arrangements if certain circumstances exist, including that the employee:
- is pregnant, a parent, or has responsibility for caring for a child who is school age or younger
- is a carer within the meaning of the Carer Recognition Act 2010
- has a disability
- is 55 years or older
- is experiencing family and domestic violence
- provides care or support to a family member or to a member of their household because that person is experiencing family and domestic violence
State or territory laws may also give employees certain entitlements to flexible working arrangements.
Awards, agreements, and employment contracts may also have provisions regarding flexible work but cannot exclude or provide a lesser entitlement than the Fair Work Act.
Knowing these rights empowers employees to advocate for a work environment that suits their needs.
Requesting Flexible Workplace Arrangements under the Fair Work Act
Generally, to request a change in working arrangements, an employee must be a permanent employee who has completed at least 12 months of continuous service with the employer; or be a regular casual employee who immediately before making a request had been employed regularly and systematically for at least 12 months, with a reasonable expectation of continuing the employment on that basis.
The request must be in writing setting out details of the changes sought and the reasons for the change. Changes in working arrangements could include changes in work hours, patterns of work, and location of work.
Obligations of Employers When Responding to Requests
Employers are obliged to give a request for flexible work arrangements ‘reasonable consideration’, meaning they must genuinely assess the feasibility of the request. They must respond in writing, within 21 days of receiving the request, stating their decision and, if relevant, setting out alternative arrangements.
A request can only be refused on ‘reasonable business grounds’ and if the employer has discussed the request with the employee, considered the consequences for the employee of refusing the request, and tried to reach a compromise with the employee.
Reasonable business grounds for refusing a request might include costs, capacity, practicality, or significant impacts on productivity, efficiency, or customer service.
The Fair Work Commission can assist with resolving disputes between employers and employees regarding flexible work arrangements.
Making Flexibility Work – Considerations
Employees
Flexibility is a two-way street. Maintaining productivity, meeting deadlines, and clear communication are paramount. Just because an employee is working from home does not mean that professionalism goes out the window. Data security, timely responses, and accountability are essential. Employees should treat their remote workspace as a professional environment and always maintain the utmost confidentiality of the business and its clients.
Employers
Employers should ensure that access to flexible arrangements is equitable and provide all the necessary resources (equipment, software, training, etc.) for the employee to carry out their duties. Employers should ensure fair treatment and foster a culture of trust and transparency. This includes regular check-ins and providing constructive feedback and performance evaluations that are free from bias.
Employers should set clear policies and monitor performance (respecting privacy) to ensure business operations run smoothly. Employers have the right to refuse or modify requests if they disrupt the business, but these decisions must be based on legitimate business-related reasons.
Employees utilising flexible work arrangements should have the right to fair treatment and equal opportunity, for example, equal access to career development opportunities, training, and promotions.
Checklist for Flexible Working
- Develop a comprehensive policy: Involve employees in the process and clearly outline expectations. Employers might consider going beyond their minimum legal requirements for employees to request flexible working arrangements.
- Recognise different needs: Some employees may only require flexible working arrangements for a set period, for example, while going through a separation, settling children into a new school, or dealing with a family emergency.
- Utilise effective communication tools: Invest in technology that facilitates seamless collaboration between team members.
- Check in regularly: Maintain open communication and provide constructive feedback. Set clear metrics and conduct regular reviews. Transparency and open conversations can help manage expectations and foster trust and cohesion.
- Address challenges: Be proactive in tackling issues like burnout and isolation.
- Think outside the box: Think creatively and trial flexible arrangements for an agreed period to see what works for both employer and employee. Be prepared to adjust the arrangement as necessary.
Conclusion
Flexible work arrangements can help employees manage their work and personal lives resulting in greater job satisfaction, less stress, and lower levels of absenteeism. This can lead to increased productivity and lower staff turnover. With shared benefits for both employers and employees, it is likely flexible work patterns will continue to evolve. By understanding their respective rights and responsibilities and engaging in open and transparent communication, employers and employees can work together to create flexible workplaces that are productive and supportive.
This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please call (02) 5127 5261 or email [email protected].