There is no question that for a lot of Australians, the working day will have changed in shape and form since the onset of the pandemic. Noticeably, along with flexible working arrangements such as job sharing or part time work, workplaces have embraced swaths of technology which allow for remote working. The days where a full complement of employees would arrive on site or in the office for a day’s work is a thing of the past.

However, as Dolly Parton once said, “we cannot direct the wind, but we can adjust the sails”, and it appears that business have done just that. Back in pre-COVID 2019, only 35% of employers reported having a formal working from home policy according to research by the Australian Governments Workplace Gender Equity Agency. This number had increased last year to 71% of employers. In total, less than 2% of organisations who engaged with the research did not offer their employees any kind of formal or informal flexibility.

This modern reality has been galvanised by new Australian workplace laws. The “Secure jobs, better pay” Act has amended to the Fair Work Act regarding, among other things, flexible work entitlements. Previously, employees could request flexible work hours, but there was little recourse available to them if the request was refused. Now, in certain circumstances where flexible work has been requested and no agreement has been reached, employees are able to take an employer’s refusal to the Fair Work Commission as part of a dispute resolution process. There, an effort will then be made to reach agreement by conciliation and, where that fails, parties may receive a binding decision through arbitration.

The new legislation applies to employees which fit certain categories, such as people who are over the age of 55, and parents of school aged children or younger. Employers will be legally required to take consultative steps to reach agreement with eligible employees who request flexible work hours or arrangements.

It is important to remember that the obligation to consult does not mean an obligation to agree. The new changes include the requirement that, where an employee’s request cannot be accommodated on reasonable business grounds, an employer has the responsibility of proposing an alternative. Should an employee decide not to take an alternate option, and there are reasonable business grounds for an employer to refuse a request for flexible working, then there is every possibility that the Commission would find in favour of an employer, should the matter reach that stage.

As with most Workplace disputes, having and following a process is key. A recent decision in the Fair Work Commission has highlighted the importance of genuinely engaging with an employee who has requested flexible working conditions. In that case, the employer had flippantly refused their employees flexible working request without beforehand engaging in any efforts with the employee to find a workable solution. Consequently, the Commission determined that the employers did not have the “reasonable business grounds” necessary to refuse the request. This pre-amendment ruling indicates that the Commission will most likely take a careful look at an employer’s response when presented with a request. So, having proper processes and workplace policies is vital.

In this era of tightened labour markets and low unemployment, it makes sense for employers to consider flexible work requests accommodate them where possible. Data obtained by National Bureau of Economic Research indicates that a third of Australian employees who are currently working flexibly would be inclined to immediately quit their job or start looking for a new one if they were required to return to their place of employment on a full time basis. Like Dolly, it seems that, in this post COVID work environment, Australian workers are less inclined to be constrained to office, working 9 to 5.

To avoid the risks of failing to properly consider any requests for flexible work arrangements, we can provide advice and guidance and practical tips to suit your business.

This article was prepared by Hicksons Lawyers for Australian Sign & Graphics Association.

Need legal and business advice? Warwick Ryan of Hicksons Lawyers can provide ASGA members with free Australia-wide legal advice. Conditions apply. Contact Michael Punch at [email protected] for more details.