From the 30th June 2014 any employee in the U.K. who has worked for their employer for 26 weeks continuously can apply under the Employment Rights Act 1996 to change their working arrangements so that they can work flexibly. This marks an additional step in an evolutionary process started in the U.K. more than a decade ago and confirms that the U.K. has one of the most progressive legislative regimes with respect to flexible working. It signals that in the U.K. at least, flexible working is part of the mainstream of working life.
According to the U.K. Government the Statutory right to request flexible working is now available to more than 20 million employees. Endorsing the new legislation, the Deputy Prime Minister Nick Clegg said:
“Modern business knows that flexible working boosts productivity and helps them keep their top talent so that they can grow.”
The U.K. Government has estimated that overall economic benefits in the first 10 years will be about £475m.
In Australia, the equivalent rights under the National Employment Standards of the Fair Work Act are much more restrictive. Essentially under the Australian legislation a few limited categories of employees have the statutory right to request a flexible working arrangement including parents and carers of school going age or younger; carers of individuals with a disability or illness; employees who themselves have a disability and employees who are experiencing family or domestic violence or supporting a family member who is experiencing such violence.
The request for flexible working arrangements must be in writing, must explain what changes are being asked for and explain the reasons for the request. The employer is obliged to respond in writing within 21 days stating whether the request has been acceded to or has been rejected.
A rejection by the employer must be based on reasonable business grounds and the legislation provides clear guidelines as to what is constituted by such grounds. They include that the requested arrangements are too costly; that the other employees’ working arrangements cannot be changed to accommodate the request; that it is impractical to change other working arrangements or hire new employees to accommodate the request; that accommodating the request would result in loss of productivity or have a negative impact on customer service.
As is the case with the U.K. legislation there is no distinct statutory right in Australia for the employee to challenge an employer’s assertion that a valid business reason exists for denying the request. This has led some to argue that the legislation is pointless since it confirms that employees have a right to request a flexible work option (a right which in principle they already have), not a right to actually be granted flexible work.
While the absence of a remedy or a right to challenge is probably a weakness in the legislation the criticism is misconceived.
The legislation can and does serve as a touchstone of how employers and employees should and will understand their rights and obligations. Both groups will certainly refer to the legislation in order to formulate their requests and responses. For this reason the requests and responses are likely to be more carefully considered and formulated and as a result a reasonable meeting of the minds is more likely.
More significantly, legal enactments are often a trailing indicator of changing social, cultural, economic and political norms so that the fact that the right to seek flexible work options is enshrined in legislation is an explicit acknowledgement that society is changing its perceptions as to how work obligations can be discharged and managed,. This is a fundamental paradigm shift. Flexible working has become an integral part of how we work in the 21st century and can no longer be viewed simply as an inconvenient employee perk
For these reasons, the fact that only a few specified categories are encompassed in the Australian legislation reflects an attitude to flexible work options which is out-dated and which does not match the evolution in styles of working which already characterise the modern world of work in Australia and elsewhere. Furthermore this legislation is based on the premise that flexible working is desired only by and necessary for those on the fringe of the workforce – those whose needs are exceptional and not consistent with the ‘ideal’ 5-day-a-week full-time worker.
However considerable evidence has been gathered by authoritative bodies in Australia (and elsewhere in the world) over the past decade which shows persuasively that the demand for flexible work is coming from all quarters, is increasingly being sought by both men and women, across all age cohorts, in virtually every industry and for a wide range of reasons – not just by those with carer responsibilities.
Australia would do well to follow the U.K. example and to change its legislation so that every employee can seek flexible work and expect to be granted a fair and well-considered response from every employer. Such a move would reflect a real paradigm shift and open the doors to deploying flexible working as smart business strategy.