As of tomorrow the new changes to requesting flexible work arrangements come into effect for all businesses under the national workplace relations system. If you are a Sole Trader eg: Jane Smith T/as Janes Cafe, an unincorporated partnership eg: Jane & Bob Smith T/as Janes Cafe or an unincorporated trust eg: Jane and Bob Smith as trustee for Janes Cafe you fall under the WA Industrial Relations Commission, so these changes do not effect you. The majority of employees in Australia fall under the Federal system which covers all constitutional corporations or in layman’s terms it is any business with “Ltd” or “Pty Ltd” after its name. All other states in Australia have referred their industrial relations powers to the Federal system but Western Australia being Western Australia has chosen to keep the State based system.
So what are the changes and how do they effect your business.
Come December 1 2018 there will be a right for certain employees to request flexible working arrangements from their employer. An employer can only refuse such a request on “reasonable business grounds”.
More specifically, the requests may be made by:
- permanent employees who have completed 12 months of service
- casual employees who have been employed on a regular & systematic basis for a sequence of periods of employment of at least 12 months, and have a reasonable expectation of the arrangement to continue
Eligible employees are entitled to request a change in their 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.
Examples of changes in working arrangements may include:
- hours of work (eg. changes to start and finish times)
- patterns of work (eg. split shifts or job sharing)
- locations of work (eg. working from home).
Employers must give employees a written response to the request within 21 days, stating whether they grant or refuse the request and may refuse the request only on reasonable business grounds. If the employer refuses the request, the written response must include the reasons for the refusal.
Further, it is unlawful under:
- The Fair Work Act to take adverse action against employees including termination of employment
- State & Federal legislation to discriminate against employees either directly or indirectly through their employment because of their family or carers responsibilities
Employers must accommodate their employees’ family and carer responsibilities where it is reasonable to do so. Whether a refusal to accommodate such requests is unreasonable will depend on the facts and circumstances of the particular situation. A defence is available to employers on the basis that an adjustment is not reasonable if it would cause an unjustifiable hardship on the employer taking all circumstances into account, including consideration of:
- 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.
Reasonable grounds for refusal for a small employer may differ vastly to those that are reasonable for a large, well resourced employer.
For example if the employee is in a customer facing role or manning a busy switchboard, and you are a small – medium employer with a minimal number of similar employees to provide coverage for the absence, and recruiting may be impractical given the hours of engagement, then you may be able to justify that you have reasonable business grounds. The same situation with a large employer with 20 + admin staff would struggle to provide such a justification.
Similarly a non customer facing role who can complete the bulk of their tasks online, and with minimal interaction, such as an accountant or engineer would have quite a good case to suggest their absence from the office to work from home would create minimal disruptions to the operations.
The future is now
The reality is flexible working arrangements will soon become the new normal, and not just for the legislated requirements we have now. In a recent white paper released by Employment Hero on what Australian employees want from their workplace, flexible work arrangements rated in the top 3 wants with 45% of respondents indicating it was important to them when choosing a prospective employer. The same group, when asked what benefits they would like their existing employer to introduce, overwhelmingly stated flexible work arrangements with 59% of respondents giving it priority over other benefits such as career development, financial incentives and “feel good” benefits such free massages.
The next generation crave flexibility. The Deloitte 2017 Millennial Survey reveals that “flexible working continues to be a feature of most millennials’ working lives and is linked to improved organisational performance, personal benefit, and loyalty”. Overall, 84% of millennials reported that some degree of flexible working ranging from flexible start and finish times, flexible roles and flexible locations including work from home were highly desirable.
These arrangements are not identified as “simply a nice to have” but as being strongly linked to improved performance, employee retention and loyalty. Further, the report notes that organisations that have adopted flexible work indicated any earlier misgivings that opportunities would be abused appeared to be unfounded with 78% of respondents feeling trusted by their line managers. If you would like to read more about the changing millennial workforce Click Here. I also shared my thoughts on whether the changing face of the workplace was a contributing factor to the skills shortage in residential mining and trades positions here.
The inclusion of flexible work policies into your HR framework isn’t just about millennials or working mums, as we hurtle towards a large ageing population it provides the flexibility for the ageing workforce to continue working well beyond 65, something that will become more and more a necessity with superannuation unlikely to accommodate most retirees needs into their 80’s & 90’s.
Flexibility as a workplace norm builds diverse and inclusive workplaces, it allows those who would otherwise be somewhat excluded or restricted within the workplace to be able to contribute to the organisations success, it allows organisations the ability to attract & retain talent as we see a societal shift in personal priorities. Creating a flexible and agile workplace goes beyond creating “an accommodation for working parents”, rather it’s a strategy that enables a competitive business edge in the ever changing world of work.