With the introduction of the Fair Work Act (2009) we saw a lot of changes in the employer/employee environment. One of the major things to change is the introduction of Flexibility in the Workplace. A lot of business owners embraced the change and a lot didn’t have time to find out what Flexibility in the Workplace really meant for their business.
From where I was sitting (being able to advise employers about their staff needs etc), the introduction of Flexibility in the Workplace was only a good thing. Giving staff options around their employment, through flexibility makes for a happier, healthier, more productive team.
What is Flexibility in the Workplace
The Fair Work Act (2009) made it a legal right for employees to request flexible working arrangements. But in reality what it did was allow the employers and employees to make arrangements around their working conditions that suited them.
The benefits of being flexible with your staff is that it results in improved productivity and efficiency due to them being able to maintain a work/life balance that is best for them. Employers and Employees can negotiate ways to make their work place more flexible at any time, as long as the employee is still receiving their minimum entitlements.
There are two formal ways to go about making a workplace more flexible:
a) Flexible working arrangements – certain employees have a right to request flexible working arrangements
b) Individual flexibility agreements – employers and employees can negotiate to change how certain terms in an award, enterprise agreement or other registered agreement applies to them.
Flexible Working Arrangements
What are Flexible Working Arrangements?
Flexible Working Arrangements are arrangements between an employee and employer that meet certain criteria. It is also important to note, that if an employee comes to you, the employer, and requests a certain flexibility, they are able to refuse these requests ons on reasonable grounds, so don’t think that this change in the award is all about the employee.
Flexible Working Arrangements can include changes to:
• Hours of work (eg. Changes to start and finish times)
• Patterns of work (eg. Split shifts or job sharing)
• Locations of work (eg. Working from home)
Who can request flexible working arrangements?
There is a criteria of what employees are eligible to request flexible working arrangements. They have been working for an employer for at least 12 months and also meet one of the following criteria:
• Are the parent, or have responsibility for the are, of a child who is school aged or younger
• Are a career (under the Carer Recognition Act 2010)
• Have a disability (and are qualified for a disability support pension under the Social Security Act 1991)
• Are 55 or older
• Are experiencing family or domestic violence, or
• Provide care or support to a member of their household or immediate family who requires care and support because of family or domestic violence
An example for eligibility for flexible working arrangements are – an employee of yours is a parent of a preschool child. They request to start work at 10am on the mornings of preschool so they can take their child to preschool.
For all casual staff members, they can make a request for flexible working arrangements if they have been working regularly and systematically for you for at least 12 months and there is a reasonable expectation of continuing work with you on a regular and systematic basis.
Requests for Flexible Working Arrangements
Requests for flexible working arrangements have to be in writing and explain what changes are being asked for and the reason for the request.
A response to the request should be made in writing by the employer within 21 days stating whether the request is granted or refused. The request can only be refused on a reasonable business grounds. If the request is refused the written response must include the reason for the refusal.
It is also important to note that employers do not have to choose between accepting or rejecting a request in full. Once a request has been made, employers and employees can discuss and negotiate to come to an agreement that balances both of their needs.
Reasonable business grounds can include:
• The requested arrangements are too costly
• Other employees’ working arrangements can’t be changed to accommodate the request
• Its impractical to change other employee’ working arrangements or hire new employees to accommodate the request
• The request would result in a significant loss of productivity or have a significant negative impact on customer service.
The Fair Work Australia website has quite a few templates for letters that request flexible working arrangements and how to word the employers written response.
Individual Flexibility Agreements
What is an Individual Flexibility Agreement?
An Individual Flexibility Agreement is a written agreement used by an employer and employee to change the effect of certain clauses in their award or registered agreement. It is used to make alternative arrangements that suit the needs of the employer and employee.
An employer has to make sure that the employee is better off overall with the Individual Flexibility Agreement than without it. An Individual Flexibility Agreement can’t be used to reduce or remove an employee’s entitlements.
What can an Individual Flexibility Agreement do?
An Individual Flexibility Agreement can change how certain clauses in an award or registered agreement apply to the employee covered by it.
For example, the award your staff work under says that ordinary hours are worked between 9am and 5pm. You can make an Individual Flexibility Agreement that states an individual’s ordinary hours are worked between 7am and 3pm. This means that for this individual employee their ordinary hours are between 7am and 3pm, but the rest of your staff still have ordinary hours as per the award – 9am to 5pm.
An Individual Flexibility Agreement can be used to vary the following clauses in your award:
• Arrangements for when work is performed, such as working hours
• Overtime rates
• Penalty rates
• Leave loading
If you operate under a registered agreement, then the flexibility clause will say what clauses can be changed.
How is an Individual Flexibility Agreement Made and ended?
Once an employee has commenced work an Individual Flexibility Agreement can be made at any time.
You cannot force your employee it sign an Individual Flexibility Agreement, both parties must genuinely agree to it. An employee’s right to refuse to agree to an Individual Flexibility Agreement is protected by their general protections. This means that they can’t be discriminated against or treated adversely for refusing to agree to one.
Both the employee and employer have a right to request the other party to enter into an Individual Flexibility Agreement. Once this happens they then negotiate what agreements they want to make.
Once they have agreed upon the arrangements they are put in writing and both parties sign the agreement. If an employee is under 18 years of age the agreement also has to be signed by their parent or guardian.
Both parties should keep a copy of the signed agreement. If the Individual Flexibility Agreement is not made properly it will still apply, but the employer may receive a fine.
An Individual Flexibility Agreement does not need to be approved or registered with the Fair Work Ombudsman or the Fair Work Commission.
To end an Individual Flexibility Agreement, it can be done so by written agreement between an employer and employee. Otherwise it can be ended by giving the other party appropriate notice. If you work under an award, to end an Individual Flexibility Agreement you need to give 13 weeks’ notice. If you work under a registered agreement you need to give 28 days’ notice.
So as you can see, having Flexible Working Arrangements or Individual Flexibility Agreements in your work place can only be of benefit. They are easy to implement and easy to track.