It appears flexible work arrangements have become a fact of life, allowing employees to have a better work life balance while creating opportunity for a more engaged and productive workplace.
However, flexible work arrangements are not a one size fit all solution for either employers or employees. For employers in mining and resources with large work forces comprising diverse roles, negotiation and discussion are encouraged to achieve positive outcomes for all.
It’s been widely reported that the Finance Sector Union has filed a dispute with the Fair Work Commission claiming the Commonwealth Bank has failed to consult with employees on flexible work arrangements.
Reportedly the Bank did not support employees working from home more than a couple of days a week for a range of reasons among them, apparently it’s their view that extended absences from the workplace reduce collaboration by up to a third. [1]
We’ll have to wait and see how things turn out, but in the meantime, it seems flexible work arrangements are here to stay.
As of 6 June 2023 requests for flexible working arrangements form part of the National Employment Standards and apply to all employees covered by the National Workplace Relations system (which is almost everyone)
As you would expect, there are criteria for flexible work arrangements and rules for both employees and employers.
To make a request, an employee must have been employed for at least 12 months, while full-time and part-time employees can request flexible work arrangements if they meet one of a set of defined criteria.
Commonly criteria include the employee being the parent or having responsibility for the care of a child who is school aged or younger; they are a carer under the Carer Recognition Act 2010; themselves have a disability; are 55 years or older; they are pregnant; experiencing family and domestic violence or they provide care or support to an immediate family or household member who is experiencing family and domestic violence.
Casual employees can request flexible work arrangements as well, if they meet one of the above criteria (such as having a disability, being a carer or they’re pregnant); they’ve been working for the same employer regularly and systematically for at least 12 months and there is a reasonable expectation of continuing work with the employer on a regular and systematic basis.
When requesting flexible work arrangements, rules for employees include requests for flexible working arrangements are to be in writing and contain an explanation of why the request is being made, and what the change in work arrangements would involve.
Similarly, employers also need to follow the rules when responding to these requests. For example, they must respond to the employee’s request in writing within 21 days, either giving their approval or refusal to the request.
As you might expect, there are also rules around refusing a request.
Firstly, the employer must also discuss the request with the employee and genuinely try to reach an agreement on alternative arrangements to accommodate the employee’s circumstances and consider the consequences of refusing the employee’s request.
An employer can only refuse a request on reasonable business grounds.
Reasonable business grounds include the requested arrangements being too costly or the likelihood of the request resulting in a significant loss in efficiency or productivity or having an unacceptable negative impact on customer service.
Similarly, it may not be possible to accommodate a request if the proposal requires changing the working arrangements of other employees or having to hire new employees.
However, that’s not to say employers and employees can’t agree to working arrangements that are different from what the employee may have originally requested.
On those occasions, the employer needs to confirm the agreed changes in writing and again within 21 days of receiving the employee’s request.
It’s in everyone’s best interests to strive for a mutually acceptable outcome, however in the event of a dispute over an unresolved flexible workplace request, the employee can take a claim to the Fair Work Commission.
Next steps
While we await outcomes for the CommBank, business leaders in the mining and resources sector, should to be proactive on this issue of workplace flexibility and consider the type of challenges and opportunities it might present for the organisation.
As I said at the outset, flexible work arrangements, which were something of an exception rather than the rule pre-pandemic, now appear to be firmly embedded in workplaces and are now embedded in the law and this provides advantages and challenges for both employers and employees.
Employers should be asking themselves: What strategies can we adopt to ensure that alternative and flexible working arrangements are successful?
Naturally, the flexible work options available to you and your employees will depend on your business, the employee, and the role they perform in your business and industry.
May I strongly encourage you to implement a written flexible work policy.
Such a policy will provide a clear, consistent and fair process for application and meeting expectations, while demonstrating your support of flexibility in your workplace.
For workplace relations advice and assistance defining and implementing flexible work arrangements for your business please contact Robert Lamb, on +61 (0) 7 3007 2000 or email contact@resourcesunearthed.com.au.
Resources Unearthed is a solutions hub that provides integrated financial, legal, property and accounting & business advisory services for executives, professionals and business owners in the mining and resources sectors.
The information in this article is intended only to provide a general overview and has not been prepared with a view to any particular situation or set of circumstances. It is not intended to be comprehensive nor does it constitute legal advice. While we attempt to ensure the information is current and accurate, we do not guarantee its currency and accuracy. You should seek legal or other professional advice before acting or relying on any of the information in this blog as it may not be appropriate for your individual circumstances.
[1] https://www.afr.com/work-and-careers/workplace/cba-says-no-to-fully-remote-work-20230222-p5cmo6
