Workplace flexibility is an increasingly popular practice in 21st century business, with potential benefits flowing to both employers and employees. Most businesses value a “flexible” employee, and may indeed state this in their job advertisement. From the employers perspective, a flexible employee will not shy away from a task that is above their pay grade, or beyond their position description, and will not mind completing extra hours or working at different location to accommodate business needs. From the employee’s perspective, workplace flexibility is sought after as a benefit that enables their freedom and autonomy – to pursue more meaningful work, to reduce commuting time, and to balance work and family and/or lifestyle related responsibilities and desires.
A valuable leadership principle is to maximise the human potential of your employees. Workplace laws and policies that encourage flexibility for both employers and employees, in my opinion, provide the foundation for the realisation of this potential, as they can promote innovation, concentration, increased productivity, and the autonomy to balance work and personal life.
In the Australian industrial relations landscape, there are a number of workplace laws and practices that deal with workplace flexibility:
• Award flexibility – Time off in lieu of overtime:Employees covered by Modern Awards containing such a term may request that they take time off at a later time, instead of receiving payment at overtime rates for additional hours worked.
• Individual Flexibility Agreements in Modern Awards:These agreements allow Modern Award terms such as hours of work, overtime rates, penalty rates allowances and leave loading to be varied to meet the genuine individual needs of an employer and individual employee. (Employees willingness to voluntarily enter into such agreements can be essential for the operational viability of some businesses).
• Requests for flexible working arrangements under the National Employment Standards (NES):This right is available to certain classes of employees, namely parents and carers, those with a disability, those who are aged 55 or older, and those who are experiencing domestic violence from a member of their family or those providing care or support to a member of their immediate family or household, who require care or support because they are experiencing violence from their family. Requests must be made in writing and set out the details of the change sought and the reasons for the change. Employers must give employees a written response to the request within 21 days, stating whether they grant or refuse the request. Requests can be refused on ‘reasonable business grounds’.
• The Fair Work Commission’s “Family Friendly Working Arrangements” decision, handed down on 26 March 2018.As part of the 4 yearly review of Modern Awards, the Fair Work Commission has developed a provisional model term that would supplement the rights to request flexibility under the NES (outlined above). The model term:
• Expand the group of employees eligible to request a change in working arrangements relating to parental or caring responsibility to include ongoing and casual employees with at least six months’ service (but less than 12 months’ service
• Before refusing an employee’s request, the employer will be required to seek to confer with the employee and genuinely try to reach agreement on a change in working arrangements that will reasonable accommodate the employee’s circumstances.
• If the employer refuses the request, the employer’s written response to the request will be required to include a more comprehensive explanation of the reasons for the refusal.
• Alternatively, if the employer and employee agree to make changes to the terms of employment to accommodate flexibility, the details of the changes should be confirmed in the written response.
• Workplace policies and individually negotiated agreements:Employers may develop their own workplace policies, or negotiate agreements with individual employees that enable flexibility. Employers can make their expectations for flexibility from the employee clear by way of an employment contract or workplace policy, which, for example, requires that the employee be ready, willing and able to travel to distant locations. On the side of employee benefits, designed to reward and recognise talent, and boost engagement and thus profits, policies and agreements for where work is conducted (e.g. telecommuting), when it is conducted (e.g. flexi-time) and for how long (e.g. reduced hours or part-time). Employers may also have policies regarding the use of leave entitlements for the purposes of enabling flexibility.
In my experience from talking to thousands of business owners and HR professionals, more and more are catching on to the benefits of workplace flexibility for both their business and their family and personal lives, but few have the knowledge of the formal legal requirements for ensuring their flexible workplace practices are compliant. They may also lack documented polices and contracts that formalise negotiated agreements. Moreover, many employers are unaware of their rights when it comes to refusing requests for flexibility, and the criteria for legal eligibility for requesting flexible work arrangements. Flexible working arrangements must also be managed and implemented well, for them to be effective. This is where professional advice can come in really handy, so please do not hesitate to get in touch with me for assistance.
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