How to Manage Flexible Working Arrangements

COVID 19 has forced many workplaces to become ‘flexible’ in ways that would have been unimaginable three years ago.  It reduced our CBDs to ghost towns and made ‘working from home’ the norm.  Although restrictions have eased, some employees are not in a hurry to return to the office having found working from home arrangements suited them and their families.

Many workplaces have been able to reach some practical compromise, but cases are starting to come before The Fair Work Commission where where an employee’s refusal to return to the office has resulted in a dismissal.  So, what are your responsibilities as an employer when faced with a request to provide flexible working arrangements to an employee?

Fair work act

Flexible working arrangements have been a source of discontent in some workplaces since the introduction of the Fair Work Act in 2009.  At issue has been the extension of flexibility for family reasons to fathers as well as mothers, and possible disruptions to the workplace caused by some workers having different hours to others.

In December 2018, The Fair Work Commission introduced a ‘model term’ (basically a template) that now applies when an employee makes a request for a change in working arrangements under the National Employment Standards (NES). 

The model term requires the employer, before responding to the request to:

1. Discuss the request with the employee; and
2. Genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances, having regard to:
   • the needs of the employee arising from their circumstances;
   • the consequences for the employee if changes in working arrangements are not made; and
   • any reasonable business grounds for refusing the request.

The term ‘business grounds’ is vital to the concept.  Other grounds for refusing a request for flexible working arrangements are not acceptable.

Reasonable business grounds

Reasonable business grounds for refusing a request for flexible working arrangements include but are not limited to:

• The new working arrangements requested by the employee being too costly for the employer;
• There is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
• It would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
• The new working arrangements requested by the employee would be likely to result in significant loss of efficiency or productivity; and
• The new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.

Flexible working arrangements and the NES 

The NES do not require the employer to choose between granting an employee’s request in full or refusing the request, rather employers and employees are encouraged to discuss their working arrangements and, where possible, reach an agreement that balances both their needs.

The NES requires that the employer give the requesting employee a written response within 21 days of receiving the request, so employers need to develop procedures to ensure these discussions are convened within the first 10 days after receiving the request so that documentation of flexible work agreements are developed within an acceptable time frame.

Penalties

If you and your business are found to be in contravention of the Fair Work Act, you can face serious financial penalties.

Take aways

An employer generally has the legal right to direct employees who have been working from home due to COVID 19 to return to the office, especially if the employee’s contract of employment identifies the office as the primary place of work. 

Provided, the direction to return to the office is lawful and reasonable, an employee who refuses to comply with such direction may face disciplinary action, up to and including dismissal.

However, before things escalate to that stage you must engage in a dialogue with the employee about their request to work from home and whether reasonable adjustments can be made to their work arrangements.

Strategies to manage flexible working arrangements

1. Develop a clear policy on flexible working arrangements and keep it up to date.
2. Make sure all staff are aware of the policy and their rights.
3. Stay informed about your rights and responsibilities.
4. Encourage all staff to talk to you about flexible arrangements – not just those who have a right to apply under the National Employment Standards.
5. Carefully consider the needs of your business and how you can meet them while accommodating your employees’ needs for flexibility.
6. Respond to all employee requests for a change in working arrangements in a timely manner (in writing within 21 days if your employee has a right to request under the Fair Work Act 2009).
7. Discuss requests with your employees so you fully understand their situation.
8. Consider alternatives if you can’t fully meet their request.
9. As an employer you have OHS obligations to your employees, including that they work in a safe environment. Make sure you are up to date with government advice and that you have the appropriate COVID-safe plans for your workplace before you direct employees to return to the office.
10. Seek legal advice about managing requests for flexible working arrangements if you are unable to accommodate them.