Sadly, the answer is “no”. Our workplace relations system is designed to be driven by conflict –  by claims and counter claims by employer associations and unions based on opposing ideologies and traditional and political views on how they should represent their constituents in industrial proceedings.

And the Fair Work Commission itself and its members are firmly positioned as the arbiters in that contest as is intended under the Fair Work Act 2009.

What all of that means is that our systems and the positioning of the key parties involved are not conducive to collaboration or to partnering in long-term strategic change. Every case is a transaction in conflict and that is one of the reasons why we have a productivity problem in this country.

So how is that going to deal effectively with issues like “working from home”?

The irony

The COVID pandemic changed the landscape completely because lots of people were not allowed to go to work – they had to work from home if they were going to work at all.

Those circumstances gave rise to some innovative changes to award provisions which allowed employers and employees some additional flexibilities around arrangements with hours of work and use of leave entitlements.

These included temporary options of:

• varying ordinary hours to operate up to 10.00 pm enabling people to arrange their working hours around their parenting responsibilities and
• employees being able to schedule their meal and rest breaks to times that suited them rather than the specific times prescribed in the award and
• being able to utilise annual leave to cover more time off work but at a proportionately reduced pay rate 

Of course, once the COVID lockdowns were over, these flexibilities were removed from awards without any real consideration of whether there might be a case for retaining them.

That was a pity and an opportunity missed because the pandemic lockdowns gave employees the experience of working from home and many liked it and that fundamentally changed how we think about work as part of life. 

So what now?

The Fair Work Commission was tasked last year with undertaking a “Work and Care” review of modern awards and the consideration of “working from home terms in modern awards” is a step in that process.

It is being reported that, as we move further on in time from the pandemic closedown period, more and more employers are demanding more and more workers to return to the office – in some cases full-time and in others for typically 2 or 3 days per week.

The flip side to that is that study after study shows that a majority of people want some flexibility in their working arrangements and, for those whose jobs can be done from home, that is commonly desirable for them. It has become a sought after attribute in employers’ offerings to the labour market.

If you believe the media, employer groups are now advocating the abolition of penalty rates in return for flexibility in hours of work, something which the Federal Government has already pledged to override by protecting penalty rates through legislative change.

It is a bit of a mystery why we don’t simply revisit how the FWC dealt with working from home arrangements during the pandemic – they did do some practical things that seemed to work like allowing an employee and employer to agree to an arrangement of ordinary working hours outside the span of hours in the Award where an employee wants that and the employer is happy to accommodate it. Sure, you might need to make some adjustments to protocols around the right to disconnect in the individual’s case but it really shouldn’t be that hard. 

Some employees have a statutory right to request a flexible working arrangement

Employers now have additional obligations and exposures in relation to requests for flexible working arrangements for workers who have a statutory right to request a flexible working arrangement. These are people who have 12 months service with an employer and:

• are the parent, or have responsibility for the care, of a child who is school aged or younger
• are a carer (under the Carer Recognition Act 2010)
• are a person with disability
• are 55 or older
• are pregnant
• are experiencing family and domestic violence, or
• provide care or support to an immediate family or household member who is experiencing family and domestic violence. 

The odds are that many of your employees fit under one or more of those categories.

Employers now have to genuinely consider and consult with workers about requests for flexible working arrangements, there are strict procedural requirements and timelines involved and a worker who is not happy with an employer’s refusal of their request can take the matter to the Fair Work Commission for mediation, conciliation or arbitration. 

Awards have already been modified to specifically provide for disputes over requests for flexible working arrangements to be dealt with in accordance with dispute settlement provisions in awards.

One of the concerns that employers could have is whether insertion of a working from home clause in Awards would result in in expansion of the right to have a dispute with an employer dealt with by the Fair Work Commission to all award-covered employees rather than just those in the categories that have a statutory right as noted above. Logically, it would have that effect.

So what does all of this mean?

Flexible working and working from home are here to stay.

Employers who continue to resist that will find themselves not just challenged to find and retain the people that they need in a competitive labour market where flexible working is a valued commodity, but will also likely be challenged in the FWC and possibly other jurisdictions to justify that resistance on “reasonable business grounds”.

There are organisations which are more than happy to offer flexible working arrangements because they see the value in them for employees, they equip their organisations with the tools and leadership skills to manage people in those flexible arrangements, they hold people accountable for their performance and behaviour and they actually see improvements in productivity. That is what the future workplace should look like.

So the question that you need to answer for your business is “Do you really want to engage in a tug of war that you can’t win?” 

Please call us on 0438 533 311 or email enquiries@ridgelinehr.com.au if you want to explore how we might be of assistance.