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Flexible working arrangements for employees

Flexible working arrangements for employees: what should I know?

Which employees are eligible to apply for flexible working arrangements, and how should employers manage these requests?

The Covid pandemic has prompted dramatic changes to Australian work culture. As a result, flexible working arrangements for employees are becoming the norm rather than the exception. And there’s an ongoing debate about whether a four-day work week should be standard for full-time workers. However, as an employer, you must be mindful of workplace laws, especially when considering an employee’s request for flexibility.

What are flexible working arrangements for employees?

The Fair Work Act allows eligible employees to request flexible working arrangements in some circumstances. These arrangements enable changes to their standard employment conditions to accommodate other demands or needs. Arrangements typically apply to:

  • Hours of work. For example, an employee may ask to commence work an hour earlier and finish an hour earlier so they can collect children from school
  • Patterns of work. For example, a full-time employee who wishes to work part-time may ask for a job-sharing arrangement
  • Locations of work. For example, an employee may ask to work from home for one or two days per week due to a long commute time

Who can request flexible working arrangements?

Flexible working arrangements are limited to specific categories of employees:

  • Full-time or part-time employees who have worked for your business for at least 12 months
  • Casual employees who have had regular and systematic employment in your business for at least 12 months, with the reasonable expectation of continuing work

However, these categories of employees must also meet other requirements, namely:

  • They care for a child who is school-aged or younger
  • They are a carer for a person with health care or aged care needs
  • They have a disability
  • They are at least 55 years old
  • They are experiencing domestic violence
  • They are experiencing family violence
  • They are helping a family or household member who needs care and support due to domestic or family violence

What are the requirements for requesting a flexible working arrangement?

When an eligible employee requests a flexible arrangement, the Fair Work Act requires that it must:

  • Be in writing (for example, letter or email)
  • Include details of the changes sought
  • Include reasons for the changes

What must I consider when dealing with a flexible work request?

After receiving a written request, as the employer, you must:

  • Respond within 21 days
  • Tell the employee whether you approve or refuse the request
  • Give written reasons for any refusal

If a modern award covers your employee, you have extra obligations: you must discuss the request with the employee to try and reach an agreement.

Then, when making the decision, consider:

  • Their needs
  • Whether refusal will cause any negative issues for the employee

The employer may refuse a request on reasonable business grounds. This applies whether the worker is employed under the Fair Work Act or a modern award. The definition of reasonable business grounds may vary depending on the circumstances, but the Act gives some guidance, including:

  • The proposed arrangement would be too expensive
    Other employees’ working arrangements would have to be changed to accommodate the request, and there is no capacity to do so
  • It wouldn’t be practical to change other employees’ arrangements or recruit new employees
  • It would cause significant inefficiency
  • It could cause a substantial loss of productivity
  • It would negatively impact customer service

What should I consider before making a decision?

Before deciding whether to accept or refuse an employee’s request for flexible working arrangements, you must carefully work through all the issues. An unreasonable refusal, or one that doesn’t comply with legislation, may cause the employee to apply to the Fair Work Commission to resolve the issue. It could cause stress and interruption to your business. There’s also the possible financial impact of legal fees and the risk of penalties for any breach of the Act.

We recommend that you keep detailed notes of all investigations and inquiries into the employee’s request and how it may impact your organisation. You should also keep detailed notes of the reasons for your decision.

Be mindful of potential direct or indirect discrimination if you refuse the request. For example, if an employee wishes to vary work hours or work part-time, does this impact their ability to care for their children? Does it indirectly impact them because of their gender? Would refusal likely result in a discrimination claim against your organisation? Could a claim damage your reputation or impact sales?

We recommend that you seek our advice if you’re considering refusing an employee’s request for flexible working arrangements. We can help you work through all the issues, flag potential issues such as discrimination, and brainstorm possible solutions.

What are some tips for managing requests for flexible working arrangements?

When considering an employee request for flexible working arrangements, it’s critical to document everything, including the initial request, your investigations, how you’ve considered the issues, and the reasons for your decision.

Having a workplace policy and procedure is an excellent way of ensuring you:

  • Methodically work through the issues
  • Consider the documents
  • Consult with everyone affected
  • Maintain open communication

A policy should also contain information about:

  • How flexible work arrangements are defined
  • Who can request a flexible work arrangement
  • What types of flexible arrangements can be considered
  • Procedure for making a request
  • How you manage a request
  • Any other matters that are specific to your workplace

Please ask us how we can help you develop your policy and procedure.

If you’re considering a remote work request, you may decide to investigate software that allows employees to clock on and off, track their work and manage rosters with the employee’s team. You may also need to consider different measures of employee performance, for example, how they achieve their key performance outcomes or the quality of their work, rather than the amount of time they spend working. Implementing a system is critical to ensure the worker can effectively communicate with their team.

You may also need to consider other issues, such as:

  • How a change in the employee’s work hours may affect customer service
  • The technology available to the employee if working remotely, and who is responsible for providing the technology
  • Whether there are adequate data protection measures
  • Ensuring the physical security of workplace equipment
  • How long the flexible working arrangement will last. If it is ongoing, you need to be clear about any events that will allow either party to terminate the arrangement

Why are flexible working arrangements important?

Flexible working arrangements are an important consideration for employers because of:

  • The Fair Work Act’s requirements
  • Any additional requirements of relevant modern awards
  • The increasingly common recognition that a single work environment won’t suit every worker

Flexible arrangements have featured in the Fair Work Act for several years. However, the Covid pandemic fundamentally changed the way many jobs are performed. For example, it highlighted how much office work could, in fact, be performed remotely.

The pandemic also significantly increased work pressures on essential workers such as health care workers, highlighting the need to take extra steps to support wellbeing and career longevity.

Flexible arrangements have featured in the Fair Work Act for several years. However, the Covid pandemic fundamentally changed the way many jobs are performed. For example, it highlighted how much office work could, in fact, be performed remotely.

The pandemic also significantly increased work pressures on essential workers such as health care workers, highlighting the need to take extra steps to support wellbeing and career longevity.

Flexible work arrangements are now more important than ever, more scrutinised than ever, and more likely to evolve. It’s widely recognised that when lifestyle requests are accommodated, employees:

  • Often find it easier to come to work
  • Often find it easier to perform their work
  • Are generally happier

increases, and employee retention improves. In addition, stress levels are lowered, allowing more mental energy for work tasks.

Many organisations consider that flexible working arrangements offer a competitive edge in attracting the best staff and reducing stress. And changing the work environment can often boost creativity, lateral thinking and problem-solving skills.

However, flexible work arrangements also have disadvantages. For example, some employers fear that employees will do the wrong thing when working flexibly – perhaps they won’t work the agreed hours or will be too distracted to complete the work. Trust is a critical issue. We recommend consulting with the employee to establish ways of measuring work volume and quality.

For employees who negotiate arrangements for remote work, there’s the risk that an employee who is out of sight may also be out of mind. It may mean that:

  • Career progression becomes an issue
  • Task allocation may not be as effective
  • The employee may become isolated
  • Communication may be difficult

It’s important to be mindful of these issues and develop ways to help the employee stay in touch with their team.

Similarly, remote work may present workplace safety issues, so you’ll need to be assured that the home office set-up is optimal. You may need to review or establish workplace safety policies for remote work and ensure the employee complies. You’ll also have to consider how to measure this. We can help you with a workplace safety policy review. Get in touch to learn more.

Flexible work arrangements may also impact an entire team of employees, so when deciding whether to grant a request, you’ll have to consider how they will work for everyone, not just the employee making the request.

And finally

Flexible working arrangements for employees can have significant benefits for both parties. But any requests must be carefully considered to ensure compliance with workplace laws and relevant modern awards. More importantly, the arrangements must work for everyone – the employee, the team and the organisation. It means granting a request can only happen after careful consideration and investigation. Further, a refusal can potentially raise other legal issues such as discrimination, so it’s important to seek our professional help when considering a request.

Contact us for more information about flexible working arrangements for employees.

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