More and more employees are seeking workplace flexibility these days.
A survey of over 2000 Australian employees found that nearly four in five (78%) of workers would prefer to work hybrid or from home, and around two in three (67 per cent) would forgo a pay rise for more flexibility (* Deloitte and Swinburne Edge).
With unemployment rates of 4%, recruiting, keeping, engaging, and maximising talent is becoming increasingly critical.
Workplace flexibility covers an almost endless myriad of options, but some (work hours, patterns of work, work location) have taken on legal implications for employers since the enactment of the Secure Jobs, Better Pay Act.
Here are four key steps to take:
(This is general information. Reach out to us if you’d like advice +61 8 6377 7606)
Step#1 – When an employee requests flexible working arrangements (FWA)
Requests for flexible working arrangements must be in writing, explaining the changes and why.
They can be from Full-time, part-time (and casuals who expect to continue regular and systematic work) employees who have been with the organisation for 12 months
> 55 or older
> pregnant
> are a person with disability
> 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)
> are experiencing family and domestic violence, or provide care or support to an immediate family or household member who is experiencing family and domestic violence.
Step#2 – Responding to the Request
A key requirement for employers is to ensure genuine consultation and reasonableness throughout this process.
> We recommend meeting with the employee to authentically understand their situation, their request and how you can support them fairly and reasonably without compromising the organisation.
> The meeting should be early enough for meaningful conversations
> Allow yourself time to respond in writing within the legislated 21-day timeline.
Step#3 – Passing the Reasonable Business Grounds Test.
Employers must ask themselves:
> Can the role be effectively performed under the requested arrangement?
> Would approval create an unreasonable burden on the organisation?
> Are there other alternatives or arrangements that can be considered?
Consider if the following is true:
> The requested arrangements are too costly
> Other employees’ working arrangements can’t be changed to accommodate the request
it would be impractical to change other employees’ working arrangements or hire new employees to accommodate the request
> The request is likely to result in a significant loss in efficiency or productivity, or
would have a significant negative impact on customer service.
> Employer circumstances make it reasonable to refuse, such as size and business nature.
Step#4 – Yes, No, Alternatives
Regardless of the decision, employers must communicate their response in writing within 21 days.
> YES – If the request has been approved, clear terms must be outlined in writing and acknowledged by the employer and employee.
> NO – Even if refusing the request passes the Reasonable Business Grounds test, the employer must have (a) discussed the request with the employee, (b) genuinely tried to reach an agreement or alternative arrangements to accommodate the employee’s circumstances, and (c) considered the consequences for refusing the employee’s request.
The written response of refusal must include: (a) the reasons for the refusal, including an explanation of the grounds for refusing and how they apply to the request; (b) other changes the employer is willing to make or a statement that there aren’t any changes to be made; and (c) information about getting help from the Fair Work Commission for disputes about flexible working arrangements.
> ALTERNATIVES – Employers and employees can agree to working arrangements that are different from what the employee had originally requested. Where this happens, the employer needs to confirm the agreed changes in writing within 21 days of getting the employee’s request.
Employers must also ensure that internal and external communications (where appropriate) are given serious consideration to ensure other employees and stakeholders are well-informed.
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Resources
> Templates to assist with this are on the fairwork website:
https://www.fairwork.gov.au/tools-and-resources/templates#flexible-working-arrangements
> If there is a dispute an application can be made to the Fair Work Commission who can make orders of resolution usually through conciliation or mediation and if unsuccessful arbiration followed by binding orders that employees and employers need to comply with.
