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Flexible Work Practices: Disrupting Corporate Environments

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One of the many lessons the COVID-19 pandemic has taught business owners is the benefits of flexible work practices. Whether you allow employees to work from home or implement job-sharing arrangements, flexible work arrangements can take many forms and mutually benefit your employees and your business. To learn more about flexible work arrangements, this article explains:

  • what a flexible work arrangement might look like; 
  • who is entitled to request a flexible arrangement; and 
  • some of the benefits of a flexible work arrangement.
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What Do Flexible Arrangements Look Like?

Flexible arrangements are, loosely speaking, anything that allows an employee to set their hours. These hours usually differ from the typical 9 am to 5 pm workday. 

Flexible working arrangements can include arrangements like:

  • staggered start and finish times;
  • part-time work;
  • job-sharing arrangements;
  • telecommuting;
  • hot desking where multiple workers use a single physical workstation; 
  • compressed hours such as working longer days over four days and having a three-day weekend;
  • expanded hours such as working three days over a five-day week to allow flexibility for school drop off and pick up times; and
  • gradual returns to work after maternity or sick leave.

Importantly, every employee has a unique set of circumstances. Therefore, as an employer, you should tailor flexible arrangements to individual situations.

Who is Entitled to Request a Flexible Work Arrangement? 

Certain employees can request flexible work arrangements under the Fair Work Act (FWA) and the National Employment Standards (NES). These employees must have worked for your business for longer than 12 months in a permanent full or part-time capacity. In addition, regular and systematic casuals with greater than 12 months of service may also request flexible work arrangements.

Likewise, the following categories of people can ask for flexible work arrangements under the NES:

  • parents caring for children under school age;
  • parents who have children under the age of 18 with a disability;
  • carers;
  • employees with disabilities;
  • people 55 years or older; or
  • an employee experiencing (or caring for someone who has experienced) family and domestic violence.
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Responding to a Request

Once you receive a request, you must provide your employee with a written response within 21 days. You should genuinely engage with and reach an agreement with your employee before making a unilateral decision. It may be that you cannot accommodate the request in its entirety, but you are able to agree with the employee to make some of the requested changes. The new amendments to the Fair Work Act require employers to follow a consultation process before refusing any request.

As mentioned above, you should remain open to the request. However, if you decide to refuse the request, you must do so on ‘reasonable business grounds.’ Reasonable business grounds include that:

  • it would be too costly to implement the arrangement;
  • your business cannot accommodate the request;
  • it would be impractical to change the working conditions of others to accommodate the request; or
  • the request will likely result in a loss of productivity or negatively impact the business.

You should also note that when considering whether the grounds for refusal are reasonable, the Fair Work Commission (‘FWC’) will take into account the size and nature of the business. Therefore, if you are a small business owner and have less capacity to accommodate these requests, the commission would consider this when determining reasonableness.

Any written refusal of an employee’s request must include: 

  • details of the reason for refusal;
  • the particular business grounds for refusing the request;
  • an explanation of how these business grounds apply to the request;
  • any changes the employer is able to make to accommodate the request, if applicable; and
  • the dispute resolution path available to the employee explained below.

Can Employees Dispute a Refusal? 

Failure to provide a reasonable excuse for refusing your employee’s request could result in a dispute. Recent changes to the law grant the FWC new powers to deal with disputes regarding flexible work arrangements.

In short, if you fail to respond to an employee’s request for flexible work arrangements or unreasonably refuse a request, the affected employee may seek dispute resolution through the Commission, which can include mediation or arbitration. 

Where the matter proceeds to arbitration, the FWC will have the ability to: 

    • make a determination as to whether the grounds for refusal were reasonable;

    • order the employer to respond to the request with more detail; and

    • order the employer to grant the request in part or in full.                  

The FWC will consider the fairness of any orders for both parties in making a determination. In addition, you may have obligations under specific state and territory legislation relating to flexible work arrangements. For example, the Equal Opportunity Act in Victoria prohibits employers from unreasonably refusing to accommodate an employee’s responsibilities as a parent or carer. If you are unsure about your obligations, contact an employment lawyer.

Do Flexible Arrangements Work?

According to the Workplace Gender Equality Agency, flexible work promotes women’s and men’s workforce participation, employee satisfaction and productivity. Whilst the COVID-19 pandemic disrupted the way people worked, flexible work arrangements are associated with:

    • greater employee well-being;

    • improved organisational productivity;

    • increased job satisfaction;

    • increased employee retention; 

    • more competitive job offerings to attract skilled staff;

    • an increased proportion of women in leadership roles; and

    • future-proofing the workplace for any potential disruptions. 

However, as noted by the Power of Flexibility Report, flexible work arrangements are most beneficial when you: 

    • make flexible arrangements the standard for every role;

    • encourage both women and men to take up flexible arrangements;

    • ensure your workplace fosters a healthy culture that supports flexible arrangements; and

    • ensure that all members of the workplace are committed to implementing flexible arrangements, including flexible policies and new technologies that will allow remote work and telecommuting.

In this sense, flexible work arrangements are most effective when they become normalised in your workplace. 

Key Takeaways 

In short, flexible work arrangements are an agreement between an employer and employee to change standard working arrangements. Whilst a flexible working arrangement will differ from business to business, it can include:

    • working from home arrangements;

    • job-sharing; and 

    • flexible start and finish times. 

By law, an employee who has worked for your business for longer than 12 months in a permanent full or part-time capacity or as a regular and systematic casual is entitled to request flexible work arrangements. You must respond to their request in writing within 21 days of receiving the request. You should also consult with the employee and attempt to come to an agreement on any aspects of the request that you can implement before proceeding with a refusal.

If you need help responding to a request for a flexible working arrangement, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

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Eleanor Kenny

Eleanor Kenny

Law Graduate

Eleanor is a graduate lawyer in LegalVision’s Employment team. She graduated in 2020 with a Bachelor of Business and a Bachelor of Laws from the University of Technology Sydney. She began her career working in an international professional services firm providing corporate clients with regulatory tax advice in relation to their globally mobile employees.

Qualifications: Bachelor of Laws, Bachelor of Business, University of Technology Sydney. 

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