The workplace is fast becoming the battleground for the upcoming election. This last week has seen a lot of discussion about flexibility provisions and the merits of legislative management of this issue. While details are still to be released, it is important for businesses to keep sight of the current flexibility provisions and not confuse the plans, policies and rhetoric with the current reality operating at the workplace. So what does flexibility look like today?

Current provisions: NES

The National Employment Standards (NES) apply to ALL workers. There is no high income exclusion in these safety net provisions. The NES lists ‘the right to request flexible arrangements’ as an employment right, enshrined in the Fair Work Act (Cth) 2009.

Employees can request a change in hours of work, change in patterns of work and changes in the location of the work.  There are several conditions that an employee must meet before they can access this right currently: the employee has at least 12 months continuous service; a child under school age; or a disabled child under the age of 18. Requests also must be made in writing and outline the details of the changes requested and the reasons for requesting the change.

For businesses it is important to note that this right is ‘the right to request flexible arrangements’. It is not a requirement for the business to consent to flexibility. The business may reject the request based on ‘reasonable business grounds’. What is required of the business is that a written response, within 21 days, stating whether the request has been accepted or rejected.

Current provisions: Modern Awards

In the downstream petroleum industry the applicable Modern Awards contain a Flexibility provision. The provision allows for the creation of Individual Flexibility Arrangements (IFA), which allow for variations to certain areas of the Modern Awards (or Enterprise Agreements due to replication) based on the genuine needs of employers or individual employees.

These provisions are highlighted in the Fair Work Information Statement that employers are required to provide to all employees and are available to all employees. The IFA provisions are available to employees to request flexibility even if they do not meet the restrictive conditions above. So new employees, with school aged children or other carers duties can utilise the Flexibility Provisions to request flexible working arrangements. Like the NES provision, these Award (and Agreement) provisions must be formalised in writing and the business can refuse to accept the request based on reasonable business grounds.

Unlike individual agreements of the past, the IFA does not need to be approved by Fair Work, but does need to specifically address that the employee is better off overall, on the balance of financial and other elegant concerns.

Current Confusion: ‘Reasonable Business Grounds’

Under both the NES and the Modern Awards provisions for flexibility there is the nebulous concept of ‘reasonable business grounds’ as a reason for the business declining a request for flexibility. The question then follows, what is ‘reasonable business grounds’? This is an area that has caused confusion for some businesses and has led to some commenters to highlight that such a ‘wishy washy’ term can lead to abuse of the system by businesses. Such confusion is an unnecessary complication of what is an everyday employment matter. Every day businesses are faced with options and proposals that are considered and accepted, or rejected, based on the impact on the business.

‘Reasonable business grounds’ defies definition, because such definitions would be restrictive and unhelpful. What is reasonable for one business may not be for another. Prescription in this area then is difficult and arguably unhelpful. Rather, the current provisions under the NES and the Modern Awards seek to highlight to businesses and employees that when considering flexibility the real impact of adopting these changes on the business need to be considered, and that a genuine effort to accommodate flexibility be undertaken.

So what is driving calls for more legislation?

With the right to request flexible arrangements already enshrined for some workers in the Fair Work Act’s NES and all workers in the Modern Awards, the question begs: why are there so many calls for more legislation? The recent Fair Work Act Review recommended the expansion of employees covered by the NES provisions and recommended the creation of more information around what constitutes ‘reasonable business grounds’. The Review stopped short however, of calling for Fair Work Commission oversight of flexibility, or for a change to the approval process for IFA.

Government proposal

The Government is now proposing an expansion and further detailing of the right to request flexibility. Details are still being released on the operational elements of the policy and proposed legislative changes, however, at this point it has been made clear that the Government is seeking to expand the types of workers and situations that the NES provisions will apply to (workers with school aged children, workers with a disability, workers over the age of 55, workers experiencing domestic violence or caring for household/family members that are experiencing domestic violence), as well as providing employers and employees with information as to what constitutes ‘reasonable business grounds’.

So what now?

As the workplace continues to be a battleground for politics in the lead up to the election, it is likely that flexibility will continue to be in the news and discussed around the water cooler. It is important for businesses at this time to clearly understand the current provisions and to engage with requests for flexibility openly, investigate the realities of such situations operationally in their business, and formally respond to requests as appropriate. ACAPMA will continue to monitor and report on legislative changes as they occur. Until the changes are effected however, it is important that businesses and staff understand and operate under the current structure.

Here to help

ACAPMA members are reminded that the ACAPMAlliance Workplace Relations Professionals are available to assist with managing flexibility in your business. For more information just call 1300 160 270.

HR Highlights are things to consider, implement and watch out for in your business. They are provided as general advice and you should seek further advice on your situation by calling 1300 160 270 and speaking to one of the ACAPMA Workplace Relations Professionals its free for members. ACAPMA membership is affordable at only $550 per year for a single site and valuable with sites gaining HR advice support and representation as well as a raft of other benefits and discounts. Click here to learn more about ACAPMA membership.

Elisha Radwanowski
BCom (HRM & IR)
Workplace Services