COVID-19 restrictions are lifting, giving many employers wider discretion to usher staff back to the office. This has put the spotlight back on flexible work arrangements.
There is little dispute that many employees, and plenty of employers, do not want or intend to return to the traditional nine to five office job, but how do these views align with our employment laws?
The Fair Work Act 2009 has long recognised the right for employees to request flexible work. However, that statutory right only extends to specific categories of employees including parents, carers, employees who have a disability, or employees who are experiencing family or domestic violence. An employee who falls within one of these categories can request flexible work arrangements and that request can only be rejected by the employer on reasonable business grounds.
For employers that open the door to all employees to seek flexible work — which is an increasingly common and arguably necessary feature of most employment nowadays — aligned with the statutory scheme, such requests will typically be approved or refused on reasonable business grounds.
An assessment of reasonable business grounds has traditionally been based on whether the employer has the capacity to accommodate the flexible work arrangement. How much does it cost? What resources or IT capabilities are required? What is the impact on productivity or client services?
COVID-19 has shown us that many businesses can accommodate highly flexible work arrangements. Arrangements some employers may never had thought possible two years ago. Therefore, unless we are prepared to give employees an unfettered right to work from home, we need to recalibrate how we assess flexible work requests.
Just as employers need to accept that many employees will not want to return to the office full-time, employees must understand that businesses will likely see an inherent value in having employees back at the office — a value that is not tied to the bottom line.
A business may see office attendance as a necessary piece to promote a better culture, stronger communication, and staff connections. Or it may be regarded as a critical part of the business’ values, reputation, or service offering. In other words, attendance forms part of the inherent requirements of an employee’s position, but for reasons that go beyond the confines of the position description.
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It is against this new form of mutual understanding between employees and employers that flexible work arrangements must now be discussed. Like many things, the old way of thinking no longer works.