Can flexible work be made to work for everyone, even if you’re not in an office?
Right now, we have the ‘perfect storm’ of lots of factors causing constriction of the labour market in the post-lockdown environment.
There is lots of talk about working from home and hybrid working from those who had to work from home during lockdowns and would like to keep doing that for at least some of the time.
Correspondingly, there is a common call to employers to be flexible in this if they are going to be competitive in that tight labour market. But what about all of those people who can’t work from home because their job (as distinct from their boss) doesn’t allow them to?
Clearly factory workers and drivers and construction workers and those in essential services and health care and childcare and aged care and many, many more cannot do their jobs at home.
So does that mean that they cannot have some flexibility?
It should be possible, although the options might be more limited.
Here are some to think about:
- Introduce RDOs to give people a day off every month;
- Have an early finish on Friday to let people get organised for the weekend;
- Allow people to adjust their hours to attend to personal commitments (eg an employee works an extra half hour on each of four days to get two hours off on the other day – perhaps to help with remedial reading at school or to coach a child’s sporting team);
- Look at job-sharing arrangements where a couple of employees work part-time in the same job;
- Trial a four-day week (it is working well in some places);
- Allow people to purchase additional annual leave for extended holidays;
- Let people use their personal/carer’s leave more flexibly to meet important personal needs that don’t involve sick leave or caring requirements;
- Extend the use of compassionate leave to more than just the immediate family and household (eg to attend funerals for close friends and other relatives like uncles and aunts and cousins and nephews and nieces).
And bear in mind that if you can help your employees out with some flexibility to accommodate their needs, they are likely to be more flexible in helping to meet yours.
Then there is the law
In some cases, an employee will have a legal right to request flexible working arrangements under National Employment Standards.
The Fair Work Act provides that employees who have worked with the same employer for at least 12 months can request flexible working arrangements if 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.
This includes casual employees who have a reasonable expectation of continuing employment.
Such requests can only be refused on reasonable business grounds and an employer has to respond in writing within 21 days saying whether they accept the request and, if not, why not.
Reasonable business grounds might be:
- the requested arrangements are too costly
- other employees’ working arrangements can’t be changed to accommodate the request
- it’s impractical to change other employees’ working arrangements or hire new employees to accommodate the request
- the request would result in a significant loss of productivity or have a significant negative impact on customer service.
Awards provide additional detail on how these are to be managed and includes obligations to consult with the employee making the request and to provide a written response to the employee’s request including, if the request is refused, the reasons for the decision, the grounds for the refusal and how those grounds apply.
Employees are able to take the matter to the Fair Work Commission for review in line with the Dispute resolution procedure in the Award if their employer refuses their request.
There is a lot to think about in this space whether you are wrestling with hybrid working, wanting to enhance your value proposition as an employer or grappling with your legal obligations.
If you get a formal request for a flexible working arrangement from someone who is eligible under National Employment Standards, you should obtain qualified advice from an experienced workplace relations advisor.
Peter Maguire is the owner and practice leader of Ridgeline HR, an award winning HRM consulting practice which he founded in 2000. Peter is an acknowledged expert in workplace relations compliance and also a high-performance leadership coach with over 40 years’ experience in HRM. Ridgeline HR’s byline is Helping PEOPLE in BUSINESS and that is essentially what Peter does – help business people with their people business.