Corporate Australia Landscape Redefined – The Latest on Hybrid Work

The recent enactment of the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (“FW Amendments”) has sent shock waves through the Australian corporate landscape through the introduction of controversial pay secrecy prohibition legislation, fixed-term contract limitation periods and flexible work arrangement requirements.

In the wake of Covid-19, Australians nation-wide have embraced flexible work with a reported one in three employees prepared to resign if they were unable to work from home. The post-pandemic corporate landscape has forged a workplace trend that empowers employees to reduce time and expenses on heavy commutes, increase productivity and greater balance between work and home.

However, SMEs to multi-national corporations have begun backtracking on flexible work arrangements in a bid to return to the status quo. The FW Amendments have incorporated flexible work arrangements into the National Employment Standards (“NES”).

The NES applies to all employees that fall under the national workplace relations system, irrespective of an applicable Modern Award, employment contract or enterprise agreement.

 

Eligibility

An employee has a statutory entitlement to request a flexible working arrangement with their employer if they are:

1. the parent or primary career of a child in school or younger;
2. a carer;
3. have a disability;
4. fifty-five (55) or older;
5. experiencing family or domestic violence; or
6. a carer or providing support to a member of their immediate family or household.

This extends to employees that are parents and primary carers that seek to return to work on a part-time basis following a period of parental or adoption leave.

Casual employees are entitled to make a request if they have been employed on a regular and systematic basis for at least twelve (12) months and there is a reasonable expectation of continuing employment on this basis.

All employees must satisfy twelve (12) months continuous service in order to access the benefit of this workplace right.

 

Requirements

An employee must make a request for flexible work arrangements in writing to the employer, including reasons for the request and the proposed change sought.

The employer has twenty-one (21) days to provide a written response to the request, stating whether they grant or refuse the request. In the event that an employer refuses the request, they must provide reasonable business grounds in writing.

Examples of flexible work arrangements that eligible employees are entitled to request include (but are not limited to):

1. changes in hours of work (for example, reduction in hours worked, changes to start/finish times);
2. changes in patterns of work (for example, working ‘split-shifts’ or job sharing arrangements); or
3. changes in location of work (for example, working from home or another location).

 

What are reasonable business grounds?

In circumstances that:

• the new working arrangements requested by the employee would be 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; or
• the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service,

the employer may refuse a request for flexible working arrangements.

Ultimately, the employee and employer are encouraged to discuss and negotiate flexible working arrangements that balances the needs of the respective parties. In the event that a mutual agreement is reached, we would recommend that employees request a written variation or addendum to their employment contract to record the terms of their arrangement.

Employers should ensure that any material variation to any terms of employment are prescriptive and documented, particularly in circumstances where conditions are attached to the granting of flexible work arrangements (e.g. fixed-term period).

 

Grumpy Employee?

Although there is no strict requirement for employers to agree to a flexible working arrangement, the Fair Work Act 2009 (Cth) empowers the Fair Work Commission to address disputes concerning compliance by an employer in providing a written response within twenty-one (21) days and whether an employer had sufficient business grounds.

The powers of the Fair Work Commission are further bolstered by the anti-discrimination regime in each respective state and territory, particularly in relation to parent and carer responsibilities.

 

Perception is Reality

Employers should tread carefully to ensure that any refusal to a request is thoroughly reviewed and properly considered. Any written response should be prescriptive on grounds for refusal and encourage the employee to discuss the matter to achieve a mutually beneficial arrangement.

Otherwise, employers run the risk of employees assuming that their request was refused for prohibited reasons including breaches of the discrimination provisions in the Age, Sex and Disability Acts. A risk of that nature can quickly materialise into general protections claim, discrimination or human rights complaint.

Chamberlains Law Firm can assist employers with navigating the recent FW Amendments, conducting workplace audits for internal risk assessments and preparing documentation to assist employers with compliance.