Wed Jun 3

it's time to fix our national employment standards

Written by Kantha Dayaram, Associate Professor, Curtin University

The number of Australians working from home has soared during the COVID-19 crisis. Latest data from the Australian Bureau of Stastistics ^[1] shows 46% of the workforce worked from home in late April and early May.

By comparison, the bureau’s 2019 data ^[2] showed slightly less than a third saying they “regularly worked from home” – a number likely inflated by those catching up on work from the office.

For many this has been the first real taste not just of full time teleworking, but any flexible working arrangements – something that under minimum employment laws remain a privilege for a select few.

But it will be important for all organisations to keep extending flexible working arrangements to as many staff as possible as we move to the next phase of our COVID-19 response.

While social distancing rules are now relaxing, until there’s a vaccine we still need work flexibility for as many people as possible. To ease, for example, morning and afternoon congestion in central business districts and on public transport.

Over the past few months we’ve been been part of a research team looking at how organisations have coped with the abrupt shift to remote work. Our findings are promising. But they also highlight a deficiency in Australia’s national employment standards, which do little to encourage employers embracing flexible working arrangements.

Still more a privilege than a right

Your rights to flexible working arrangement are likely to be set out most strongly in your favour in an enterprise agreement. Or, if you don’t have one of those, an industry award. Or possibly an individual contract. Provisions will differ.

If you aren’t covered by any of those, you’re out of luck.

The right to flexible working arrangement set down in the National Employment Standards ^[5] – the minimum entitlements employers must give all employees – is no right at all.

Instead, the Flexible Working Arrangements ^[6] standard stipulates only that:

Some employees who have worked for the same employer for at least 12 months can request flexible working arrangements, such as changes to hours, patterns or locations of work.

To even have the right to make that request, you must also:

be the parent or carer of a child who is school-aged or younger
have a disability, or be a carer
be 55 years and older
be experiencing violence from a family member, or supporting family or household members experiencing family violence.

If you meet these criteria, you have the right to receive a response to your request within 21 days. If your request is rejected, your employer must detail the reasons ^[7] for the refusal, “including the business grounds”.

What constitutes “reasonable business grounds” is broad. It includes your employer deciding your request:

is too costly
can’t be made to fit with the working arrangements of other employees
“would not be practical” to accommodate
will result in a “significant loss of productivity” or “significant negative impact on customer service”.

The Fair Work Commission does have the power to adjudicate a complaint about an employer’s grounds for refusing a request. But according to the Fair Work Ombudsman ^[8]:

This generally only happens if the parties to the dispute have agreed in an employment contract, enterprise agreement or other written agreement for that to occur.

Tracking the transition

The COVID-19 pandemic has provided us and our colleagues at Curtin University with an opportunity to see how organisations have managed with a big shift to teleworking.

These arrangements they might easily have been rejected previously on “reasonable business grounds”.

Our research involved interviewing 34 human resources and industrial relations managers and implementers. They worked for organisations that included a hospital, a school, a financial services company, and multiple mining companies, government departments and not-for-profit organisations. Their employee numbers ranged from as few as five to as many as 60,000.

We interviewed them between April and May to see how their organisations coped with the move. Thirty said they were unprepared for such a large-scale transition. Yet after four weeks, 27 were enthusiastic about the benefits and wanted flexible work arrangements to continue.

As the senior human resource advisor of a mining company, put it:

I don’t have kids and before I did not think about working from home. Now I would like to do it at least for one day a week and definitely see I can 100% get my work done from home.

Amending the Fair Work Act

Our findings suggest employers have little to fear from strengthening flexible working arrangements in the National Employment Standards.

The onus on employees to prove the “business grounds” for employers’ refusal should be eased. The Fair Work Act should be amended so all employees can have access to challenge a refusal for flexible work arrangements.

Greater flexibility is both possible and productive for most workplaces. Now it’s also in a wider social interest.

The authors would like to acknowledge the work of their colleagues John Burgess, Eileen Aitken Fox, Amy Tian, Jane Coffey and Chahat Guptar in contributing to the research.