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.

Employer obligations
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?