By Olivia Perry

Flexibility is one of those buzz words increasingly thrown around in workplace relations, by both employers and employees, but what does it actually mean? Flexibility in the workplace is when changes are made to how, when or where a person works to meet the needs of an individual, a business, or in some cases, both – I deep dive into this below.

In this article, I discuss the intricacies of flexible working arrangements, what additional rates and penalties may apply, and what employers need to look out for.

Let’s get into it.

So, what is flexibility?

For some business owners, flexibility simply means longer hours to cater for clients or customers in different locations or industries or opening on weekends or public holidays to catch the crowds. For others, it may mean bringing on casuals to supplement a permanent workforce or asking existing staff to work overtime. Flexibility has become more and more apparent in our COVID-impacted world, with numerous employees working from home and creating hybrid roles to allow for flexibility both within work and outside of work.

Every workplace can enjoy the advantages of taking a flexible approach to working arrangements, although the type of flexibilities available will vary between industries. These benefits can include but aren’t limited to; greater job satisfaction, lower levels of workplace stress and absenteeism, increased productivity, and improved ability to attract and retain skilled staff.

Are there any additional rates and penalties that apply to flexible working arrangements?

Regardless of how your business operates, you must be compensating your staff correctly even when working flexibly. For example, work performed before or after ordinary hours, or on weekends, may incur penalties or overtime rates. If an employee is permitted to work remotely, how will you keep track of the hours they’re working? If you allow your employees to work whenever they’d like, such as on a results-based system, are you meeting your minimum engagement period obligations?

These factors must be considered before directing or agreeing to a flexible work arrangement. It’s always best to check the employee’s contract, and any applicable modern award or enterprise agreement, to determine if there are any remuneration consequences resulting from workplace flexibility.

As we all know, failure to pay the correct minimum entitlements under a modern award or enterprise agreement exposes a business to harsh penalties under the Fair Work Act (FW Act).

Flexible working arrangements

If it is the employees themselves who want flexibility from you, such as a reduction in hours, a later starting time or the ability to work from home, they may request flexible working arrangements. Under the National Employment Standards (NES) in the FW Act, the following employees have the right to request a change in their working arrangements:

  • a parent or carer of a child who is school-aged or younger;
  • a carer within the meaning of the Carer Recognition Act 2010;
  • a person with a disability;
  • a person aged 55 years or older;
  • a person who is experiencing violence from a member of the employee’s family; and
  • a person who provides care or support to a member of the employee’s household or immediate family, who requires care or support because they are experiencing violence from a member of their family.

The employee must have completed at least 12 months of continuous service with you or is a long-term casual employee with a reasonable expectation of continuing employment on a regular and systematic basis, to be eligible for this entitlement.

If you receive a request for flexible working arrangements from one of these employees, then you’re legally obliged to consider the request and respond in writing within 21 days to indicate whether you approve or refuse the request. A modern award or enterprise agreement may impose additional procedural requirements, such as an obligation to genuinely try to reach an agreement on a change before refusing a request.

You may only refuse a request for flexible working arrangements from eligible employees on reasonable business grounds, such as that accommodating the request would be financially or logistically infeasible, or that it would have a significant impact on productivity or customer service, and you must set out the reasons for refusal in your response. It must be more than merely inconvenient or undesirable.

But what if an employee who doesn’t fit the above criteria makes a request? In this case, there’s no legal right to have their request considered, but we recommend on the grounds of best practice to do so regardless. It’s important that your employees feel valued and listened to, and in the interests of mutual flexibility, it may be worth taking a few moments to consider whether such a request could work in your business. After all, if you refuse their requests for flexibility, they’re more likely to refuse yours. It will also help to minimise the risk of employee claims, such as on the grounds of discrimination.

Can you refuse a request for employees to work from home?

HR Assured is currently receiving a high volume of calls about employee requests to work from home, as more and more employers attempt to get their workforces back on site.

When you receive such a request, you should consider why: why does the employee want to work from home, and why do you want them to be in the office? There may be several reasons, and you should weigh them up before making your decision. Mere convenience or preference isn’t enough – there should be objective reasons to support each position.

If the employee hasn’t disclosed to you why they’re making the request, you should first ask them to provide their reasons. It may be that you can achieve a compromise (such as a hybrid model with some work from home and some work on-site) rather than refusing the request outright.

For more information on flexible working arrangements, clients should contact the HR Assured team. If you’d like more information about the benefits of becoming an HR Assured client contact us today for an informal chat.

If this article has raised any questions about flexible working arrangements or you need support on another workplace matter, please contact HR Assured via our 24/7 Telephone Advisory Service.

Olivia Perry is a qualified Workplace Relations Consultant. She regularly provides advice to a large range of clients about workplace laws and the management of complex workplace matters.