The march towards greater flexibility in Australian workplaces took another step forward on 1 December when the Fair Work Commission (FWC) announced important changes to how employers handle requests for flexible work in relation to the hours, location and/or pattern of an employee’s work.
Employers will now be required to make a genuine attempt to reach an agreement on flexible work arrangements and provide detailed reasons for refusals.
The ruling encompasses employees who are covered by a modern award. According to the FWC website, workers who aren’t casual can make a request if they’ve been employed for at least 12 months and they:
- Are the parent, or have responsibility for the care, of a child who is school aged or younger
- Are a carer (under the Carer Recognition Act 2010)
- Have a disability
- Are 55 or older
- Are experiencing family or domestic violence, or
- Provide care or support to a member of their household or immediate family who requires care and support because of family or domestic violence
Casual employees can make a request if they’ve been working for the same employer regularly and systematically for at least 12 months; or there’s a reasonable expectation of continuing work with the employer on a regular and systematic basis.
Before making a decision, employers have been urged to consider how they will fill the gap if an employee needs to work flexibly and consider costs including advertising a role and training a new employee or contractor, or even if it’s necessary to fill the gap if productivity is not impacted.
Michael Wilkinson, Senior Employment Relations Adviser at Employsure, told HRM that employers also need to be aware of minimum engagement periods (the minimum amount of time an employee can work per shift).
Wilkinson added that, for employees, “if your boss says ‘yes’ to a flexible work request, they are within their right to ensure [employee] performance isn’t compromised.”
In addition, Andrew Jewel, Principal Lawyer at McDonald Murholme, offered this advice:
- Consult with any employee who has made a request for flexible working arrangements under section 65 of the Fair Work Act 2009 (Cth) in order to genuinely try to reach an agreement.
- Provide written reasons for any refusal to grant an employee’s request for flexible working arrangements, including the business grounds relied upon to support the refusal.
- Advise in writing of any alternative working arrangements that can be made if the changes to working arrangements proposed by the employee are refused.
A flexible work request can be rejected in certain circumstances. The FWC cited these legitimate reasons for turning down a request: if the employee has a client-facing role and the business is open for specific hours; cost issues; the inability to alter other employee’s schedules; if it’s too impractical to hire a new employee to fill any gaps.
An employer has 21 days to inform a worker in writing if their request is rejected.
Wilkinson also warned managers to consider the following points if they need to reject a claim:
- No surprises. If you don’t believe you can accommodate the request, be open about this from the outset. Raise legitimate concerns and explore how these can be overcome together.
- Be open to suggestions. Often some compromises can be made, and it may be in the interest of everyone to strike a balance.
- Have an informal face-to-face.Employees may not appreciate you hiding behind a formal letter or process; and an informal conversation can make the employee feel they have a voice.
These legal changes are confirmation that flexible work is being embraced by employees and, increasingly, employers. In a 2018 poll by recruitment firm Hays, nearly 9 in 10 (89%) of employers felt that flexible work arrangements are “very important” or “important” when it comes to staff attraction and retention. Hays said new technologies are reshaping how work is done, and that flexible work has become the “new normal” for some industries.
Similarly, Deloitte’s Millennial Survey of 2017 found the number of younger people able to work from locations other than their employer’s primary site increased more than 20% compared to its 2016 findings. Some 84% of respondents claimed to work in a job offering some degree of flexibility. Working flexibly was found to have a positive impact on all areas of work for this generation, including productivity, engagement, accountability, and loyalty.
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