Flexible working: what employers need to know

More and more employees want work flexibility—and it’s not just people with young children. So as an employer, why should you provide flexible working arrangements? And what are your rights and responsibilities when it comes to flexible working?

Alex Hattingh, Chief People Officer at Employment Hero says flexible working is all about facilitating an employee’s needs outside of work, often through letting them work different hours, or work remotely. “It’s allowing your employees to work hours that support other commitments they have in their life,” she says.

More workplaces are offering flexible working as employee demand for it has grown, and companies should consider it if they want to attract top talent, Hattingh says. “There is a lot of research that shows flexible work is one of the top perks people look for when selecting a job,” she says.

In fact, the ability for employees to set their own working hours during the day is the most in-demand work perk among Australian employees, a SEEK study has revealed.

The benefits of flexible working can extend right across a business, Hattingh says. For employees, the flexibility of being able to spend more time with family, fit in exercise, or forgo a long commute can help them to achieve better health and wellbeing, and feel less stressed. 

In allowing flexible work, employers are proving their trust in their staff. “You’re sending a strong message to them that you trust they will deliver in their role no matter what their hours are or where they may be working from,” Hattingh says. “The benefit here is that you get commitment from your employee in return and engagement. There is a volume of research that shows an engaged employee adds to the bottom line of a business.”

Hattingh says flexible working as a benefit can help to elevate a company’s employee value proposition and can even help to broaden the pool of candidates for a role, especially in cities where long and stressful commutes are common. “Flexible working is a huge factor in attracting, retaining and engaging talent,” she says.

Having a policy is key to showing employees that flexible working is an option, Hattingh says. “Having leadership support and leading by example is also vital for flexible working to be adopted,” she adds. “By having leaders utilise the benefit of flexible working, you’re giving many people permission to take up the benefit when they may not feel they can.” For example, a leader could be transparent in their calendar that they’re leaving work early or working from home to attend their child’s sporting event.

Tools for goal setting and collaboration, video meetings, and instant communication all help to support flexible working, Hattingh says.

As an employer, it’s important to know your legal obligations around flexible working, too.

Andrew Jewell, Principal Lawyer at McDonald Murholme, says flexible working arrangements can take a number of forms. They include: 

• starting and finishing work earlier or later in the day 

• different patterns of work, such as job sharing or split shifts

• working from home

• working in a different location, such as an office that’s easier for the employee to get to

• graduated return-to-work plans, usually after having a baby or a period of illness.

It’s important to note anyone can ask for a flexible working arrangement if they’ve worked for an employer for longer than 12 months. This includes permanent and long-term casual staff. Legally, they are entitled to ask for flexibility if they meet one of the following criteria:

• they care for a child of school age or younger

• they’re a carer—for example, for someone with a disability, mental illness, chronic condition, terminal illness, or someone who is frail aged

• they have a disability

• they’re aged 55 or over

• they’re experiencing violence from a family member, or they care for or support someone who’s experiencing violence from a family member. 

However, many workplaces now offer flexibility beyond these criteria to all their staff. 

You should avoid showing preference towards one type of request over another, Jewell explains. For example, you can’t be seen to favour new parents over someone who’s over 55 years old. “Historically family responsibility has been a category in which flexible working arrangements are generally considered and granted,” he says. “However, under the Fair Work Act there’s no distinction between the different grounds on which a request can be made.”

Some employers make the mistake of agreeing to arrangements verbally. 

Jewell says all requests for flexible working should be made in writing—even if they start off with a verbal conversation—to avoid potentially serious consequences. For example, a new manager might not be clear on a verbal agreement that was made previously, and that could give rise to tension and disagreement. “This may lead to an allegation by the employee of discrimination,” Jewell says. “If the arrangement is detailed in writing there is little room for disagreement and therefore less room for dispute.” To properly handle a request for flexible working, you’ll need to respond in writing within 21 days.

If you’re rejecting a request, you need to set out clear reasons. “An employer is only entitled to refuse a request if they have reasonable business grounds for doing so,” Jewell says. You’ll need to make sure you’ve thought through your reasons properly, “as you may need to justify the rejection”, he says. 

Reasonable business grounds include:

• the new working arrangements would be too costly

• it’s not possible to change other staff members’ working arrangements to accommodate this request

• you’d have to recruit new employees and that would be impractical 

• the change would have a significant impact on efficiency, productivity or customer service. 

Of course, you may be very happy to agree to the request. If so, just make sure you and the employee fully understand the arrangement and that you’ve outlined it all in writing. “The arrangement should be very clear in what has been agreed and the time for which such an arrangement applies,” Jewell says.

The best way to deal with the issue of flexible working is to have policies and procedures in place from the outset, and to make sure your employees know about them. Jewell explains that flexible working arrangements work best when staff can see clearly the process they need to follow, and what part they play in it. “Generally, if an employee feels involved in a process, they’re less likely to dispute its outcome,” he says. 

Information provided in this article is general only, does not constitute legal advice and should not be relied upon as such. SEEK provides no warranty as to its accuracy, reliability or completeness. Before taking any course of action related to this article you should make your own inquiries and seek independent advice (including the appropriate legal advice) on whether it is suitable for your circumstances.