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Employees’ rights to flexible working arrangements
In March 2018, the Fair Work Commission made a decision that enables modern awards to change. It allows employees to request flexible working arrangements with their employer. The decision aims to empower employees who have families or carer duties. They will now be able to continue working and maintain a healthy work-life balance.
Flexible working arrangements involve changes in an employee’s working hours. It can also include working patterns, such as dividing shifts, and the location that an employee works from. The potential of this decision is widespread. Parents with young children, people with disabilities and semi-retired people will be able to continue working, whilst also focusing on their personal commitments. This has numerous benefits. Employees and businesses will not only demonstrate flexibility to their staff, but will also gain access to a possibly overlooked, skilled and highly-experienced workforce, part time or full time.
Benefits of allowing flexible working arrangements
Companies may find that modernising the workplace and allowing flexibility actually increases employee engagement. Many people will happily substitute time later in the day to complete a work assignment, if they can take time during the day to attend a child’s sporting event or other important engagement. Time becomes less important to them and they look at productivity to deliver the work assignment. A report by best practice insights and technology company CEB, found that work-life balance is one of the most important features for Australians employees. Flexible working conditions can translate into less worry about personal matters, less leave days to take care of commitments and higher productivity for the business.
With modern business systems and tools in place, companies can recruit and retain top talent regardless of where or when they work. Global boutique recruitment agency, Ambition, reported that more than half of Australian workers are willing to decline job offers in return for more flexibility. If given flexible arrangements, highly skilled professionals who have personal commitments will still be able to contribute their knowledge and experience to their company. Companies who are able to retain their top talent through flexible working arrangements may also find those individuals returning to full-time work in many cases, once their personal obligations no longer interfere with their job. Potential new candidates may also reflect the same attitudes that CEB pointed out. They could be more likely to work for a company that they know will flexibly accommodate their needs if or when the time arises. For example, young professionals may be attracted to work for a company based on the knowledge that any future family commitments will be considered. Highly experienced people looking at semi-retirement may wish to continue working longer if their lifestyle aims are considered and met under their agreement with their employer. Parents who are considering how best to juggle childcare with work commitments can potentially work an extra hour or two daily, by avoiding travelling to/from work on workdays. The potential productivity gains by adopting a modern workplace are significant.
Making a request
So how do employees access this facility? Although the process is simple and favours the employee, there are important steps to take. Firstly, before responding to an employee’s request made under s.65 of the Fair Work Act 2009, the employer must discuss the request with the employee. They must try to come to an agreement on the working arrangements. The agreement should reasonably accommodate the employee’s circumstances. This discussion would involve the reasons why the employee wants flexibility, such as children that need to be picked up from school, or a toddler that needs to be supervised.
The reasons can also extend to a disabled or elderly family member that needs assistance. Other reasons include*:
- You are the parent, or have responsibility for the care, of a child who is school-aged or younger
- You are a carer, as stipulated by the Carer Recognition Act 2010
- You have a disability
- You are 55 or older
- You are experiencing family or domestic violence
You provide care or support to a member of your household or immediate family who requires care and support because of family or domestic violence.
*Fair Work Ombudsman Australia
According to the Fair Work Act 2009, only employees who have been with their employer for at least 12 months can make a request regarding flexible working arrangements. If an employer refuses an employee’s request, they must provide valid reasons for denying it. The refusal’s written response must also include details of the reasons for the refusal. It must also be noted that an employer may only refuse a request for a change in working arrangements on ‘reasonable business grounds’. This can include the requested arrangements being too costly; other employees’ schedules not being able to accommodate the request; hiring new employees to accommodate the request being unfeasible, and the request resulting in a serious loss of productivity for the business.
Despite a refusal requiring ‘reasonable business grounds’, some employers may still refuse a request. So what options are available to a disgruntled staff member? The decision by the Fair Work Commission gives employees the right to seek legal action if their employer fails to properly consider their request for flexible work arrangements. There has been much debate between unions, industry groups and other concerned parties. As such, the Commission has stated that “all modern awards should be varied” to allow for flexible work arrangements. This decision will undoubtedly have a significant impact on businesses and employees alike across many industries.
At Experteq, we specialise in Modern Workplace solutions and believe that productivity and staff satisfaction can increase by introducing flexible working hours, utilising modern technology. We also have strong feedback from our customers that indicates Modern Workplace solutions increase employee retention/attraction.
Background of the Fair Work Commission decision
In the March 2018 decision, the Commission Full Bench Report made several key observations.
- Blending work and family responsibilities through flexible working arrangements can provide benefits to both employees and employers.
- Flexible working arrangements enhance employee well-being and work-life balance. They also positively assist in reducing labour turnover and absenteeism.
- Some parents and carers experience lower labour force participation. This is linked to a lack of access to flexible working arrangements and to quality affordable child care.
- Greater access to flexible working arrangements is likely to increase workforce participation, particularly among women. There are broad economic and social benefits associated with increased female workforce participation.
- The most common reason for requesting flexible working arrangements is to care for a child or children. Another significant group seeking flexible working arrangements to care for family members with disabilities or elders.
- Most employees who request flexible working arrangements seek a reduction in working hours, a change in start/finish times or a change in days worked. Parents (predominantly women) seek part-time work to manage parenting and caring responsibilities.
- Women make most of the requests for flexible working arrangements and they do most of the unpaid care work. They want to adapt their paid work primarily by working part-time.
- About one in five Australian workers request flexible working arrangements each year.
- Some employees change jobs or exit the labour force as they are unable to obtain suitable flexibility in their working arrangements.
- A significant proportion (approx. one quarter) of employees are not happy with their working arrangements but do not make a request for change (a group referred to as ‘discontented non-requestors’). Reasons include their work environment being hostile to flexibility. Men are more likely to be discontented non-requestors than women.
- The fact that a significant proportion of employees are ‘discontented non-requestors’ suggests that there is a significant unmet employee need for flexible working arrangements.
- The main reasons given for refusing an employee’s flexibility request are operational grounds, including the difficulty of finding another person to take up the time vacated by an employee moving to part-time work
A significant takeaway of the decision is that it will enable many more women to rejoin and remain in the workforce. Businesses will ultimately reap the benefit of having a larger, more productive and experienced workforce. The new change will also help to decrease the staff turnover of companies, as well as result in fewer people being ‘discontented non-requestors’. However, the application of this decision by the Commission will require a mindset shift in how companies and their employees work. It will also require a technology shift so that those who decide to adopt a more flexible working arrangement have the tools and resources needed to do their job.
Accessing the hidden workforce
It is well-known that people who cannot commit to full-time or on-premise employment still have a vast pool of knowledge and experience, which today remains largely untapped. These people include women and men returning to the workforce when children reach school age, carers who look after family or people with disabilities, people considering semi-retirement or reduced hours. For example, in an article published in Harvard Business Review, authors Sylvia Ann Hewlett and Carolyn Buck Luce point out that many highly skilled women who need to take time out from work are not able to do so.
Many of these people want to work part-time or have the flexibility of where/when they work. Doing so will allow them to blend their work-life commitments. They also have a lot to offer companies, despite their restrictions. Flexibility will give them the opportunity to continue providing their valuable knowledge and skills, while organisations benefit from their experience.
Allowing staff to work where they want and when they want, can alleviate the loss of productivity due to reduced hours of work in many cases. Many employers, however, refuse to allow flexible work arrangements for their staff. They claim difficulty in tracking productivity outside the physical workplace. Existing technology prevents them from extending the virtual workplace to home, mobile or non-trusted locations where staff could be productive. This may lead to requests being refused, good employees being lost and a potentially productive working environment remaining out of reach.
It is vital to modernising the workplace in such a way that employees are not limited to an office. Instead, they can securely take their work with them wherever they go. The long-term benefit of recruiting this hidden workforce means a consistent, loyal and highly skilled team that can help build a company more effectively than a team that lacks continuity.
Create your modern workplace
The modern workplace must allow people to work anywhere. It cannot be restrictive for staff and must offer an intuitive, fast, and reliable user experience (UX) to enable staff to be productive everywhere.
People want a harmonious blend of work style and lifestyle, allowing flexibility within their workday to meet personal commitments. Businesses must strive to present a fresh experience for staff, one that blends their work style technology experience with their lifestyle technology experience. Outside work, people are accustomed to an on-demand search-click-consume experience. Businesses must now deliver the same experience at work. This is imperative since businesses who fail to do so will only lose valuable employees – those who are unable to reconcile their personal commitments with their work commitments.
To deliver the Modern IT Workplace, businesses must transform IT into a suite of highly-available services that empower people to work from anywhere, on any device they choose. It is critical to develop a one-to-one relationship with each technology user. From each interaction with staff, businesses must learn about them each time they request services. They must be rapidly provisioned with the services, applications and data they request, every time and without delay. The entire process must be highly secure throughout but without reducing or affecting productivity. The experience must always be rapid and responsive.
Modern communications and collaboration technologies allow people to work together seamlessly from almost any location. This is changing the focus to measuring productivity rather than just time in many industries. Some visionaries are even looking to Virtual Reality (VR) technology to take this further but that is still a long way off in many cases.
Experteq believes that technology can reach everyone and empower them to access the workforce on terms that suit them and also their employer. As mentioned, this will help increase workforce participation and allow for a greater amount of work-life balance.
The decision by the Fair Work Commission will require businesses to adjust and modernise their workplace to accommodate employees who request flexible working arrangements. But once businesses can cope with requests, it will help empower employees and their families, as well as give businesses access to a currently untapped workforce.