Time to face some home truths about flexible work

WRITTEN BY John Wilson & Kieran Pender

Most of us have had a least a taste of flexible working over the past two-and-a-half years.

While front-line workers kept Canberra ticking over during the numerous lockdowns of the pandemic, office-based employees were suddenly required to work from home.

For some, that was business as usual; for most, the shift was a significant change to the daily routine.

As we now enter the latest phase of the pandemic, many workplaces are trying to find a new equilibrium balancing the benefits of face-to-face working with the flexibility of home-based work.

The Australian Public Service is not immune to the challenges of this new era of working.

Some agencies have taken a flexible approach, while others have been more eager to get public servants back in the office. The inconsistency of arrangements within teams and agencies, and across the APS, has led to more than a little unhappiness.

“What people want to see is clear rights around your ability to access and request working from home, capacity and transparency about how those decisions are made,” CPSU head Melissa Donnelly said recently.

In last year’s State of the Service report, the Australian Public Service Commission (APSC) indicated that two-thirds of agencies had reviewed their flexible working policy since the pandemic. Positively, three-quarters of public servant respondents to the APS employee census indicated that if they made a flexible working request, they would feel confident it would be given reasonable consideration.

But at least under the prior government, there was political pressure to return to the physical workplace. There was outcry, we recall, when the then-public service minister, Ben Morton, told staff at several departments that the default position of working from home must become “a thing of the past.”

So what are the rights of employees to request flexible working arrangements? And what might the future hold – under a new Labor government seemingly less averse to flexible working?

At present, workers in the public or private sector do not have a legal “right” to flexible working. The common law of employment relationships gives employers the legal authority to direct employees where and how work is to be carried out.

However, the Fair Work Act permits certain categories of employees, including parents, carers and people with disability, to make a flexible working arrangement request.

Employers are required to consider and respond to the request. But that’s the extent of the obligation – if an employer deems that it has “reasonable business grounds” to refuse, it can do so. Indicative reasonable grounds for refusal provided by the law include that flexible working arrangements would be too costly or impractical or result in a significant loss of efficiency or productivity. An employee has no ability to challenge a refusal.

For now, at least. Late last month, the Albanese government introduced amendments to the Fair Work Act into Parliament. It is unclear if or when the bill in its entirety will pass; there is some consternation among the crossbench.

But proposed changes to the flexible working provisions have been greeted with little controversy, suggesting they will become law sooner or later. The proposed reform will do three things.

First, it will expand the category of those eligible to make a flexible working request – to include those experiencing family or domestic violence or supporting an affected family member. Second, it will significantly increase requirements on employers upon receipt of a request.

Employers will be required to discuss the request with the employee, provide reasons for any decision to refuse and indicate any other changes to working arrangements they are willing to make, if they otherwise refuse the flexible working arrangements sought. In considering a request, the employer must also have regard to the consequences of refusal on the employee.

Third, and critically, the amendment will give the Fair Work Commission jurisdiction to resolve disputes in relation to flexible working arrangements, including mandatory arbitration where an employer refuses an employee’s request or fails to respond.

The commission would be empowered to order that an employer comply with a flexible working request or make other changes to accommodate an employee’s circumstances.

These reforms will be a significant boost for employees requiring flexible working arrangements (although it should be said that some modern awards and enterprise agreements already go beyond the existing statutory minimum).

In the APS context, we would expect further guidance from the APSC on accommodating flexible working in the months ahead. These issues may also form a major part of industrial bargaining in departments as existing enterprise agreements expire.

Resistance to flexible working arrangement is both practical and social, and the law is a blunt instrument of social change.

There are many roles that cannot be as readily done from home; in such cases, employers refusing to permit flexible working are hardly acting unreasonably (and the Fair Work Act reform is unlikely to alter the status quo). But there are plenty of workplaces where resistance is less practical and more ideological, a view of how things should be done.

The pandemic forced all us to confront the way we work and rapidly adapt. In this latest phase of the pandemic, workplaces need to engage with the benefits of flexible working without necessarily sacrificing the efficiency and cohesiveness that can come with in-office environments.

Proposed changes to the Fair Work Act are not radical and are unlikely to lead to public servants frequently suing their agencies over denied flexible working requests.

But with the spectre of Fair Work Commission arbitration looming, managers might want to pause for thought next time they are asked about flexible working arrangements.

The above article was written for and published in the Canberra Times.

For all employment related queries or concerns, please contact our Employment Law & Investigations team at BAL Lawyers.

Join our mailing list

Get in touch