| September 2008 |
| Flexible working conditions |
| National Employment Standards |
| Flexible working conditions have recently been the subject of much discussion.
This has primarily occurred since Prime Minister, Kevin Rudd, and Minister for Workplace Relations, Julia
Gillard, released the 10 new National Employment Standards (NES). The NES are a key element of the Rudd Government's
new modern industrial relations system and will commence from 1 January 2010. As we have observed, this
new list is all but identical to the Howard Workchoices "list" of minimum standards. |
| One of the new NES, concerns "requests" for flexible working
arrangements, which is promoted as a major change. Essentially, if an employee is a parent, or has a responsibility
for the care of a child under school age, they may "request" from their employer a change in working arrangements,
for the purpose of assisting them to care for the child. The inference is that they could not do so before. |
| In order to "request" flexible working arrangements, the employee
must make the request in writing and must set out details of the change sought and the reasons for the change. The employer
must give the employee a written response to the request within 21 days. |
| If the employer refuses the "request", they must provide reasons
for the refusal. An employer may only refuse a request on reasonable business grounds. Furthermore, if a request is refused
on reasonable business grounds, it will also be open to the employer or employee to suggest a modification,
which might be more easily accommodated by the employer. |
| What reasonable business grounds includes, will not be formally defined.
However, factors that may be relevant to determining what reasonable business grounds are in a particular case, could
include the cost of accommodating the employees request, the employers ability to reorganise work arrangements
and the business needs of the employer. |
| It is probably being a bit of a spoil sport to suggest that you could
have done all of this before. One has to observe, that the entitlement to "request" anything is not all that new. |
| What are Flexible Working Conditions? |
| Flexible working conditions provide employees and employers with opportunities
to work outside traditional workplace systems. Essentially, employers and employees work together to agree on:
the times the employees work; where they work from and whether they work a full week or not. These types
of arrangements may assist businesses to manage their workforce, in order to encourage greater workforce participation. |
| There are no set boundaries on which conditions should be implemented.
Each organisation may form a set of flexible working conditions which suit both their employees and the business. |
| Types of Flexible Working Conditions |
Flexible working conditions may consist of a number of arrangements, such
as:
- Part time work - involves working less hours than
standard full time weekly hours. This may include a few days
per week, two days one week and three days the next week or ten days
worked over a three or four week period.
- Job sharing - where two people share the
roles and responsibilities of one full-time equivalent job.
- Working from home - involves working from
home, or anywhere other than the normal workplace. May involve telecommunications technology to perform the functions required.
- Part year employment - (unpaid leave or purchased
leave) - a number of weeks/months off work on unpaid leave or extra leave purchased for proportionate salary. Purchased leave is leave
without salary, funded by salary deductions occurring over a 12 month period. The deductions are set aside and made
available as salary during a period of leave without pay. These are taken in addition to normal leave entitlements.
Employees receive 88%, 90% or 92% of usual pay each pay period, including while not at work.
- A career break scheme - allows an employee
to take a maximum of 12 months continuous leave, either leave without
pay or purchased leave.
- Flexible non-core hours - where employees
must work at specified 'core' times (ie 10 - 2:30),
but other hours are flexible upon negotiation with manager/director.
- Phased retirement options - allows the
employee to gradually phase out of working life. This enables organisations to implement a better knowledge transfer.
|
| Other Groups |
| While the NES protect parents of small children, there are other groups
which are said to benefit from access to flexible working conditions. For example, due to an ageing labour force,
there is a growing shortage of workers in many occupations. Flexible working conditions would greatly benefit baby
boomers who wish to remain in the workforce rather than retire, and thus benefit the workplace. |
| Legislation |
| The Workplace Relations Act 1996 (Cth) (the Act) will regulate
the provision of flexible work practices. Despite the tonnage of newsprint
about to be expended on what a big shift this is, the change from Workchoices
will be almost zero . Once the NES come into force, an employee will not
be required to work more than 38 hours per week, plus reasonable additional
hours (like now). The Act will also guarantee eligible employees
ten days of paid personal/carer's leave per year and up to two days of unpaid
carer's leave per occasion (like now). An employee will also be
able to refuse a request to work on a public holiday, where they have reasonable
grounds for doing so (like now). The Act will also prohibit an
employer from terminating an employees employment for reasons including:
family responsibilities and pregnancy; absences from work during maternity
leave or other parental leave (like now). |
| Anti-discrimination law may also be relevant when an employer considers
flexible working practices. Federal, State and Territory anti-discrimination
legislation - such as the Anti Discrimination Act 1977 (NSW) and
the Sex Discrimination Act 1984 (Cth) - prohibit discrimination
on several grounds, including sex, race, disability and age. This includes,
during applications for employment, termination and regression. |
| Benefits to Employers and Employees |
| No one is saying that these arrangements are not a good thing. Why they
are being touted as some sort of major reform, is the point of mystery. |
 |
| This article is intended to be general information only.
It is not presented as legal advice. Since each legal circumstance is different,
no action should be taken unless specific prior advice is sought on that
action. |
