Can Your Obligations on Flexible Work, Gender Equality & Diversity Become Your New Superpower? (Part 2 of 2-part series)
by Anne-Maree Coyne – Senior Consultant, Modus Management
In Part 1 of this series, we looked at how flexible work arrangements, especially job sharing, can be a great strategy for attracting and retaining staff in the Fleet Industry (April 2022, Fleet Intouch). Flexible work arrangements are proving increasingly popular with employees wanting a better work life balance. This is particularly so as many of us return to workplaces, having experienced more flexible ‘work from home’ arrangements during Covid restrictions. Employees are seeking out employers who provide flexible work options. Gender equality, diversity and inclusion are other important considerations for the evaluating an employer’s appeal.
In this Part 2, we’ll look at the some of the legislative obligations and reasons why flexible work arrangements and diversity should be on an employer’s radar anyway. If employers create good flexible work and diversity policies (and of course put them into practise!), then they can also take advantage of just one of the important benefits of these policies – their attraction to staff.
Flexible Work Arrangements
A flexible work arrangement is an agreement between an employer and employee which alters the standard working arrangement. It includes changes to hours, patterns, and location of work. Examples include working from home, part-time work, job sharing, changes to hours like varying start and finish times, compressed working weeks, time-in-lieu and so on.
Requests for Flexible Work Arrangements - Legislative Obligations for Employers
Any employee whatsoever can request a flexible work arrangement from their employer. However, there can be employer obligations (and additional employee entitlements and rights) for these requests. Whether these exist for each employer, is dependent on the type of entity the employer is (e.g., whether the employer is from say local government or the private sector). The type of employing entity determines the applicable legislation. Awards, agreements, and contracts may also increase the standard rights and obligations relating to flexible work requests. Let’s look at a couple of examples.
Local Government – state-based legislation
In general, for local government employers, flexible work arrangements are determined by the relevant state-based industrial relation systems, acts, awards and sometimes enterprise agreements. A consequence of the state-based system are the inconsistencies between the states. However, in general most of the state-based provisions are fairly similar to those found in the National Employment Standards (NES) outlined below.
Anti-discrimination legislation also comes into play. In Victoria, for example, s19 Equal Opportunity Act 2020 provides an employer must not unreasonably refuse to accommodate parental and caring responsibilities with respect to a work arrangement. It lists a number of factors to be considered in determining whether an employer has acted unreasonably.
Private Sector - the national Fair Work System
Private sector employers fall under the Fair Work System and requests for flexible work arrangements are governed by the National Employment Standards (NES) under this system. This is regardless of any award, agreement, or contract (although these can impose additional rights and obligations). Under the NES, an employee of 12 months or more can request a flexible work arrangement in quite a number of situations - where they:
- are the parent, or have responsibility for the care, of a child who is of school age or younger;
- are a carer (being someone providing personal care, support, and assistance to another individual in need of support due to disability, medical condition, including terminal or chronic illness, mental illness or is frail and aged);
- have a disability;
- are 55 or older;
- are experiencing violence from a member of their family; or
- provide care or support to a member of their immediate family or household requiring it because of domestic violence from their family.
There are formal requirements for flexible work requests and responses, for example, the need to be in writing, provide reasons for a request and refusal, and an employer’s response to be within 21 days (which doesn’t provide a lot of time for review of the relevant circumstances, especially if the employer’s policy hasn’t been determined in advance).
The employer’s reasons for refusal must be on ‘reasonable business grounds’ like:
- the effect on the workplace and the employer’s business (including the associated cost and the impact on efficiency, productivity and customer service);
- the inability to organise work among existing staff; and
- the inability to hire a replacement employee or the practicality of arrangements to accommodate the employee’s request.
Whilst this may seem to give the employer quite a lot of latitude to refuse the request, the employer needs to have real and specific reasons, determined after detailed consideration of the relevant circumstances. Here’s an example of the types of acceptable reasons for refusal from a local government case involving an altered hours request, where an approval would have meant:
- the employer had to arrange special transport to get the employee to and from worksites before and after work;
- the employee would be left alone onsite without adequate supervision;
- the employee would miss crucial safety meetings.
The council’s good record in approving other flexible work requests was also important.
Penalties and Consequences for Non-Compliance
There can be significant penalties for non-compliance with anti-discrimination, industrial relations, and Fair Work protections. For example, under the general protections in the Fair Work Act alone, there are a number of remedies and penalties for adverse action on discriminatory grounds and the maximum penalty for contravention of an unlawful discrimination protection is $66,600 per contravention for a corporation. How are Flexible Work Employer Obligations a New Superpower?
It’s clear that employers already have extensive legal obligations around flexible work arrangements for a broad range of their employees. It would, therefore, be prudent, and frankly good business, to put flexible work policies and practises in place now, if you haven’t already, so you’re in a better place to respond to flexible work requests as you receive them. Such requests are likely to be more prevalent now as we return to work after Covid restrictions. Allowing flexible work in a measured, sensible, and managed way, will also allow you to reap the additional benefit of increasing your attractiveness as an employer. Basically, if you should be doing it anyway, why not get on with it, so you can use it to your advantage during this tight labour market? If you already have good flexible work policies and practises in place, then why not use them as a promotional superpower to bolster your reputation as a great employer?Diversity, Inclusion and Gender Equality – Employer Obligations
Discrimination on the basis of things like gender and race is of course illegal in Australia and this is entrenched in much government policy and legislation. It’s well supported across the suite of anti-discrimination laws, state-based industrial relations laws (applicable, for example, to local government) and by the federal Workplace Gender Equality Agency WGEA (which is responsible for administering the national Workplace Gender Equality Act relevant for the private sector).
Gender parity and diversity targets are becoming more prevalent in all manner of workplaces across Australia as their many benefits are becoming well recognised for organisational leadership, decision-making and performance to name a few. That’s not to say that the work here is done. Targets need to be met, not just set and current realities like the gender pay gap need elimination. However, progress is occurring.
Again, employers have many legal obligations in these areas. These obligations are too numerous to consider here. One example is WGEA’s mandatory requirement for reporting by private sector employers with 100 employees or more (including across any subsidiaries) which require reporting on things like the existence and details of policies supporting gender equity and gender equity targets. There are also minimum standards for employers with 500 employees or more.
There are, of course, consequences for not complying with these mandatory reporting requirements. For example, organisations
may need to show compliance if they are tendering for government contracts. Also, a list of non-complying organisations is made public on the WGEA website. Using the ‘carrot-not-stick’ approach, WGEA provides a separate, voluntary program for providing Employer of Choice Awards to recognise leading-practice organisations. Obviously, this can prove most useful to an organisation both externally and internally, for marketing to prospective and existing staff.
Even where organisations are not required to mandatorily report or choose not to apply for a formal Employer of Choice Awards, they still may well have other business reasons, legal obligations and policies propelling them to progress towards improved gender equity,
diversity, and inclusiveness goals. Local councils, for example, may have a goal of being reflective of the diverse communities they represent. They may also strive, as one of the arms of government, to align with as many state and national gender equality, diversity and inclusion policies as possible, within the limits of their financial resources. An instance of this would be Queensland councils striving to implement the recommendations in the Queensland Women’s Strategy 2022-27 which is ‘for all Queenslanders – governments, businesses, individuals and communities.'
So, wherever your organisation is on the flexible work, gender equity and diversity continuum, it’s worth keeping these important issues on the radar and moving towards a clarified position for your workplace on all of them. This will not only help you meet any legal obligations, but it makes good business sense – not the least of which is to make yourself a more attractive employer. Anne-Maree Coyne is a certified management consultant and specialist in strategy execution, operational proficiency, flexible work policies & arrangements, job sharing, targeted onboarding, processes & change management. For more information, please visit Modus Management or contact Anne-Maree directly by email.