Changes to flexible work laws: what HR needs to know - HRM

As of 1 December 2018, the rules around flexible work requests have changed. Experts break down who this hurts and helps, how to reject a request, and why you shouldn’t.

new ruling by the Fair Work Commission means that, as of 1 December 2018, employers need to make a genuine attempt to reach flexible work agreements with their employees and if they refuse, they need to have a good reason to back-up their decision. This new law encompasses all employees who are covered by a modern award.

So, what does HR need to know?

There are now a few things to consider when it comes flexible work; it’s not as black and white as simply saying yes or no.

Michael Wilkinson, senior employment relations adviser at Employsure says employers should think about how they’ll fill the gap if an employer needs to work flexibly. It might not even be necessary to fill in this gap, that is, if business productivity isn’t affected.

Employers should consider the following: “Will significant change be required for the gap? If the gap needs to be filled, how much will it cost the business to fill [advertising, training etc.]? Employers also need to be aware of minimum engagement periods [the minimum amount of time an employee can work per shift],” says Wilkinson.

On the more technical side of things, Principal lawyer at McDonald Murholme Andrew Jewel offers this advice:

  • consult with an employee who has made a request for flexible working arrangements under section 65 of the Fair Work Act 2009 (Cth) in order to genuinely try to reach an agreement; provide written reasons for any refusal to grant an employee’s request for flexible working arrangements, including the business grounds relied upon to support the refusal; and
  • advise in writing of any alternative working arrangements that can be made if the changes to working arrangements proposed by the employee are refused.

For employees, Wilkinson offers an important reminder: “If your boss says ‘yes’ to a flexible work request, they are within their right to ensure [employee] performance isn’t compromised.”

A win for most

Not only will employees win, it could also benefit businesses too, Jewel points out. He also notes that employers could be shooting themselves in the foot if they refuse a claim.

“An employee’s longevity would be increased if their employer is able to provide the flexibility they require to stay in their job. It would also decrease the employee’s need to take time off to deal with these responsibilities which may cause disruption,” he says.

“One example might be an employee who has to deliver children to school in the morning. That employee may request a later start time and finish time to ensure the shift is completed. If rejected, the employee may be late in any event and may need to access leave which would reduce the time spent performing duties.”

(Trying to build a business case for a flexible work policy? Read our article).

As previously reported, INS Career Management was recently recognised for its flexible work initiative at the 2018 AHRI awards gala dinner. When speaking to HRM of their win, INS’ HR manager Kellie Grant pointed out that flexible work isn’t just something we should be thinking about for parents. One of their employees S wanted more flexibility so they could work on personal creative projects.

“It’s about providing opportunities for people to explore their other passions in their life. We understand that makes for better rounded individuals and at the end of the day, that’s going to be better for your bottom line,” said Grant.

How to reject a claim

While the new law requires employers to properly explore the option, there are circumstances when flexibility just isn’t possible.

For instance, Jewel says a negative impact on customer service is a valid reason for refusal: “It might be reasonable for an employer to reject a request for flexible working arrangements where that employee has a client-facing role and the business is open at specific period. In that instance, it may not be reasonable to allow later start and finish times.”

Other justifiable reasons to reject a claim, according to the FWC, include: cost issues, the inability to alter other employee’s schedules, and it being impractical to hire a new employee to fill any gaps.

If an employer was to reject a worker’s claim, they have 21 days to inform them of this in a written response. Wilkinson also warns managers to be aware of these three things if they need to reject a claim:

  1. No surprises. If you don’t believe you can accommodate the request, be open about this from the outset. Raise legitimate concerns and explore how these can be overcome together.
  2. Be open to suggestions. Often some compromises can be made, and it may be in the interest of everyone to strike a balance.
  3. Have an informal face-to-face. Employees may not appreciate you hiding behind a formal letter or process; and an informal conversation can make the employee feel they have a voice.

Not all roses

While this new law will ease the pressure off workers, it’s not beneficial to everyone – namely those running a small business.

In an article for Smart Company, CEO of the Council of Small Business Organisations Australia (COSBOA) Peter Strong made it clear he wasn’t happy, saying this new ruling will make it “impossible to run a [small] business”.

“How do you run a business if the hours of work are decided not by the customer but by the worker? If we have to justify a business decision to a third party it is no longer our business,” Strong says.

“Small businesses may be of the opinion they do not have the resources in place to allow for flexible working arrangements and often do not have dedicated HR departments to deal with requests and providing reasons for rejections,” says Jewel. “However, colloquially small businesses are often very flexible in how they assess employee requests due to the additional value they can place on quality employees.”

Reference: “Changes to flexible work laws: what HR needs to know“, HRM, Tuesday 4th December 2018