Flexible work arrangements bend to new work standards or snap under pressure?

Since the rise and fall of Covid-19 almost every industry has arranged some type of work from home arrangement. At the time of Covid, working from home was a great way to minimise germs and unsafe human interaction while maintaining productivity. Enabling businesses to continue their operations, where otherwise they would have been forced to shut down. Thus, flexible work arrangements have become a cornerstone of a ‘modern workplace’.  

However, working from home and flexible work arrangements have caused discourse within businesses. Are businesses expected to conform to the new change, or are employees expecting too much from their employers? 

What is “flexible”? 

Flexibility refers to exceptions or outliers that are not the standard practices of that workplace. This can include starting and finishing at different hours of the day or remote/working from home. Working extra hours per day to have an additional day off in the week, or last minute changes to the work roster. If a business provides a lot of flexibility, more than usual for its industry, then the business becomes an outlier. 

Some confusion may arise as there has always been flexibility in the workplace. There is common consensus that humans cannot control everything and “life happens”. Whether there is a family emergency, an accident, or an important appointment that could only be organised Tuesday at 2:00PM. Because of these common issues employers would always provide some grace and reasonableness within workplace expectations.

Why should employers conform?

There are numerous benefits that have allowed working from home arrangements to become increasingly popular, even after Covid restrictions have lifted. It is more common and popular with large organisations. For example, there are currently negotiations to make working from home a workplace right within ANZ. 

One benefit is that more flexibility increases access to work for disabled people and caregivers. In 2022, the Australian Institute of Health and Welfare revealed that 30% of disabled people were able to work from home during Covid-19. Highlighting that a work from home arrangement allowed individuals who required more care to maintain their employment. Where it would have been more difficult otherwise. 

Disabled employees and working from home

Enabling people who require care to work and maintain sustainable employment not only supports the economy but provides access to new opportunities. There is more routine and structure. UNSW Sydney has analysed and found that for disabled individuals there are greater mental health benefits from working then being unemployed. This could be due to increased human interaction, a sense of belonging

Furthermore, there have been numerous reports to support that working from home increases workplace productivity. Whether this is from being able to organise your space in the most efficient manner. The time saved not having to commute back and from work. Or the benefit of taking breaks in the most optimal way without the interference of colleagues. 

One of the best benefits that help employees and employers is that flexible work arrangements allow for a greater work-life balance. With some studies supporting that there is less chance of burnout and greater job satisfaction. Employees are happier at work, and for longer. Meaning employers maintain a lower turnover. Resulting in an overall cohort that has greater skills and knowledge through extended tenure. 

Are employees too entitled? 

There are certain disadvantages that halt employers from allowing all flexibility and work from home arrangements to all employees. The first point is that an employer, particularly in small businesses where there are not many degrees of separation from the company owner to a general employee, are allowed to establish their business any way they like. As long as it complies with all legal requirements. 

If an employer does not want to establish work from home arrangements then in most cases that is their prerogative. As long as the reasons are not based on discriminatory beliefs or done to isolate or bully an individual. 

Therefore, an employee may need to decide if a business is right for them and their needs. If there are certain requirements or non-negotiable arrangements that they want and need but a company does not provide then it may be more beneficial to find further employment. 

Furthermore, the more employees work from home or away from the office there can be a blur of boundaries. Whether that is how the employer contacts the employee, what times are acceptable, or if the employee is allowed to separate their home from their work space. 

This can be particularly difficult with the introduction of the ‘right to disconnect’ bill. This bill states that employees have a right to not interact with work outside of work hours without punishment. However, there are concerns of the enforceability of the bill. And how to protect against both employees and employers corrupting the bill for their own gain.

Is working from home safe?

If there are reasons for someone from work to visit the employee in their home then there can be a multitude of precarious issues. For example, if someone has to come in to fix technical issues with a workplace device in their home. How would the employer ensure the employees safety against circumstances of sexual harassment or stalking behaviour. Or ensure that the employee was not uncomfortable with their home being seen by a work colleague.

Lastly, there are concerns with the decline in mental health if there are too many work from home days. While some days away from the office has been seen to boost productivity and enjoyment for work. If employees are only working from home then it can lead to a decline in mental health due to the effects of isolation and loneliness. Not only affecting productivity but can have laying health concerns if prolonged.

Isolation may also affect an employee’s ability to communicate with their team. Set realistic boundaries or goals as they have no immediate point of reference. Unlike in an office where comparisons are easier. Or have the ability to build relationships and collaborate or expand on a skill set.

What happens when employees expect too much? 

In a recent Fair Work matter, a Bendigo Bank manager had found out what happens when he does not cooperate with his employers regarding flexible workplace practices. 

The bank manager had explained that he is “not a big fan of going into the office”. However, his role required him to collaborate and interact with staff members inside the office and demonstrate a “can do” attitude. Therefore, to fulfil the inherent function of his role he was required inside the office. He had talked with his employer about arranging a more flexible work situation, however he was denied. Prompting him to apply for a Fair Work Commission flexibility application or F65 Application.

The flexible arrangement form provides an opportunity for employers and employees to have a facilitated discussion as to why a flexible arrangement could or could not be made. In this case, there was an interim agreement that the bank manager would only have to come into the office once a fortnight. However, the bank had preemptively refused his request to work solely from home. 

The bank manager had put forward an argument that he required working solely from home due to his responsibilities as a carer for his wife. His wife had sustained a foot injury and she needed help around the house. Furthermore, the manager had a daughter recently diagnosed with ADHD and she required a constant routine. 

However, information had come out that the manager’s wife was conducting intensity yoga classes multiple times a week. Which is inconsistent with the supposed need to take care of her. Clearly she could move around independently. Commissioner Platt knew that there was a good chance that the manager had exaggerated his wife’s conditions. Supporting this theory, the manager’s evidence was “inconsistent, largely uncorroborated and overall unconvincing”. 

Employees cannot get everything, its not all about you FWC decides

Ultimately Commissioner Platt had decided to reject the manager’s application on the basis that it did not meet the jurisdictional requirements. That the manager would have had to need a flexible arrangement related to the relevant fact that his wife was seriously injured. However, finding that the fact was exaggerated there was no relevant reason why the manager would require working from home outside of his personal interests. 

The Commissioner made a point to note that workplace flexibility is a “two way street”. The needs of both parties must be met for the arrangement to be successful. Not only should employees have accommodations, but employers also require the inherent function of the role completed in a manner that supports the overall business. 

However, what happens if the employer gets it wrong? 

A matter was taken to the Federal Circuit and Family Court of Australia (FCFCOA) after a disabled employee’s return to work was disastrously organised. A mechanic had sustained injuries outside of work and required reasonable adjustments to do his job. As supported and documented by multiple medical professionals.. 

The mechanic was off work for three months after a dog attack. After three months he was allowed back at work on light duties by his general practitioner. However, on the mechanic’s return the employer upheld that he would not be allowed to work without a full clearance for all duties. 

The employer did not understand the intricacies of what was required by them and would not make any adjustments to the mechanic’s work. Despite having clearance to work on modified duties. 

The Court found that this act contravened the Commonwealth Disability Discrimination Act (1992), which states that employers are required to make ‘reasonable adjustments’ to prevent discrimination. The FCFCOA ordered the employer to pay a sum of $44,000 in damages.

There was some mitigating circumstance that the employer did not understand discrimination laws or what their requirements were to provide reasonable adjustments to allow an employee back to work. However, this did not prevent the employer from being liable for discrimination. 

What does this mean? 

In most cases an employer will have pre-established flexibility arrangements that are available. Whether all full time employees are allowed two work from home days. Or are allowed to start and finish earlier on any given day. Or have paid time off for exams and schooling. 

In most cases that require a flexible arrangement due to special circumstances there is usually limited resistance as there is understanding that special situations happen. Such as injury or family circumstances. And in some circumstances there is also an understanding that it is not a permanent change but a temporary measure. There are some instances where it is legally necessary to provide flexibility per discrimination or workplace legislation. 

Particularly if an employer can aid during a difficult period allowing that employee to be retained by the business and get the benefit of maintaining a well trained and compatible workforce. In most situations it is easier organising flexible arrangements rather than advertising, hiring,a dn training a new employee. 

However, some employees believe that they can be entitled to any arrangement for any reason. Which is usually not the case. There requires some reasonability regarding why an arrangement is the way it is. Because another company performs that way, or another employee receives a certain arrangement, will not always convince a company. And at the end of the day it will be the employers prerogative whether a flexible arrangement is allowed.

Conclusion to: Flexible work arrangements What’s Next?

Just rememeber its not all about you. The relationship with your employer is a two way streeet. Now some employers are totally unreasonble and what’s the FWC is there for to sort these issues out. The trouble is a percentage of good perople have got too complacent working from home. People are drinking more, not showering, not get up and working from bed all day. Do not fall into this group. It’s no good for your heath and certainly the ability longer term to keep your job. Evidence is coming through that employees who work from home are not getting promoted.

Employers are putting more pressure on to get your act together or get back to work. Have concerns call us, get advice. We are AWNA the nations leading workplace advisors and commentators. We are not lawyers.

Call 1800 333 666 for prompt, confidential advice

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