Flexibility, but for whom; Federal Government pushes envelope on employee flexibility but what about employers?

Workplace flexibility is a concept that most agree with but one must first ask “for whom?”

As part of its review of the Fair Work Act, the Federal Government will introduce legislation to broaden an employee’s right to request flexibility. Legislation is due in the autumn session of Parliament.

While the exact shape of the proposed legislation is not clear, greater numbers of employees will have the legal right under Federal law to request flexible working arrangements. At present, only parents of pre-school children and those with a disabled child under eighteen years of age are able to make such a request.

Under the proposed legislation, employees able to request flexible leave will include those returning from parental leave, carers, mature-aged workers and people dealing with changed family conditions, such as domestic violence issues.

It is believed the legislation could also include guidelines on reasonable grounds for rejecting a request for flexibility and it may force all businesses to inform new workers of their rights.

At present, employers are able to refuse these requests on “reasonable business grounds”.

The Greens and unions are seeking an employee right of appeal in the face of a refusal.

The Australian Chamber of Commerce and Industry (ACCI), while citing flexibility as a worthy goal, has warned of a red tape burden because of a possible need to retain documents in the event of a refusal, which could also invite the potential for workplace inspectors to investigate.

ACCI also warns of rancour if two employees demand flexible working hours and it is impossible to satisfy both at once.

On the other side of the flexibility equation, there are mechanisms for individual flexibility arrangements available to employers and employees in current workplace agreements but unions in some industries have opposed them and used industrial muscle to make them meaningless. This prompted the Fair Work Act Review Panel to recommend last year that enterprise agreements should model individual flexibility clauses as a minimum. However, the Government has kicked this recommendation into touch for the time being, indicating that it will give it due consideration in the future.

Since the original employee flexibility arrangements came into force with the Fair Work Act in 2010, there has not been a flood of employees requesting flexibility, quite possibly due to perceptions of job insecurity in the post Global Financial Crisis environment. The Australia Work and Life Index shows that the proportion of people who requested flexible working hours actually fell between 2009 and 2011.

iHR Australia’s Director of Workplace Relations Mr. John Boardman said “While flexible working is desirable, it needs to be qualified by genuine operational need. For example, an employee who wants to work part-time should not be able to force the employer to accept a job share when continuity across the working week is either necessary or even highly desirable to the business. Care needs to be taken to ensure employers do not lose the right to organise their own businesses and have productivity adversely affected as a result.”