The measures introduced by the Secure Jobs, Better Pay Bill reflect the recent transformation of the industrial relations landscape – particularly our shifting perspectives on flexible work. Here’s what HR needs to know.

Among the myriad of changes to employment law coming off the back of the Fair Work Legislation Amendment (Secure Jobs, Better Pay Bill) Act 2022, certain employees will soon have more avenues to fight back against employers who deny requests for flexible working arrangements.

Currently, employers must consider and respond ‘reasonably’ to flexible work requests from employees who are: 

• Over 55
• Living with a disability
• Caring for infants or school-aged children
• Carers (within the meaning of the Carer Recognition Act 2010 (Ch)), or
• Experiencing family and domestic violence, or caring for someone who is.

The new regulations, which will take effect in June 2023, will continue to apply to these groups with the new addition of pregnant employees. The main difference coming from the Bill is that these employees will now be given the right to bring a dispute over a flexible work request denial to the Fair Work Commission (FWC), which may order their employer to grant the request.

What do the new rules mean?

While many employers have already embraced flexible and hybrid working as part of their business models, the government’s decision to enshrine these rights into law for some employees is a clear nod to the benefits of flexible work and the changing priorities of the workforce.

A recent survey of over 2000 Australian employees conducted by Deloitte and Swinburne Edge found that nearly four in five workers (78 per cent) who can work remotely would prefer to work hybrid or from home, and around two in three (67 per cent) would forgo a pay rise for more flexibility. 

While the Bill’s new regulations do not apply to all workers, the decision could have a knock-on effect that could make it easier for other employees to negotiate flexible work arrangements in their employment contracts, says Nick Ruskin, Partner at K&L Gates.

“With the growth in enterprise bargaining and multi-employer bargaining, if the legislation has the impact that the government wants it to, more employees will be covered by enterprise agreements. And those enterprise agreements could provide for a widening of who could ask for flexible work arrangements – and they would be legally binding,” he says.

In cases where employers breach these enterprise agreements by denying flexible work requests without reasonable grounds, the matter could still be taken to the FWC for arbitration.

However, according to Michaela White, ER/IR Manager at Cleanaway, it’s unlikely that the FWC will be inundated with requests to arbitrate matters like this.

“I think it’s going to be only a limited number that will get there,” she says. “I think most employers and employees will try to have those conversations at the workplace level. 

“In general, most employers want to accommodate flexibility where they can… But, will it prompt some of those who are a bit more resistant to have those conversations? Yes, I think it might.”

When is it ‘reasonable’ to refuse a flexible work request?

As with many of the changes brought by the Bill, we will have to wait for the rules to be tested and precedents set to truly know the definition of ‘reasonable grounds’ in the new legislation, says White. 

However, given the current environment of economic uncertainty, it’s almost certain that cost considerations will be a reason provided for rejecting a request for flexibility in some cases. 

“For example, [if you change your hours], there are penalty rates that might apply. If you make a flexible arrangement request and say you want to work after eight o’clock at night because that suits your circumstances, it might be that an employer can’t accommodate that without paying 150 or 200 per cent in penalties or overtime payments,” she says.

“If someone’s asking for something very different – for example, they want to have a big gap in the middle of the day and then work late – then that can be harder to accommodate for employees who are covered by a modern Award.”

“It’s about being able to accommodate different people’s needs, rather than saying, ‘No, you have to fit in the nine-to-five box.’ Those days are long gone, and have been for quite a while.” – Michaela White

Ruskin points to supply chain delays and the administrative costs associated with bringing in another employee to do the job as other potential financial considerations that could constitute ‘reasonable grounds’ to refuse the request.

“It will also depend on the nature of the business,” he says. “What does it mean to be costly? What’s costly for one employer might not be costly to a larger employer. Or, there might not be capacity to change working arrangements without [disrupting] the working arrangements of other employees.

“For example, let’s say the applicant says, ‘I don’t want to work Thursdays because that’s the day I take my elderly relative that I’m caring for to the doctor, and I’ll work another day.’ It’s a reasonable request, but maybe five other people have already been granted Thursday off, and the employer can’t grant it to a sixth person.”

If a business can clearly demonstrate that it has assessed a request for flexibility and found that it was not reasonably feasible due to cost or operational factors, they will have reasonably declined the request as required by the Act, he says.

Changing perceptions of flexible work

White predicts that the new legislation brought by the Bill will prompt employers who are resistant to adjusting their business model to reconsider their capacity to offer flexible working arrangements. 

“I’ve worked in contact centres, where you need to manage ebbs and flows in call volumes,” says White. “When they initially introduced flexible working there, they realised they could actually adjust people’s rosters and accommodate the flexibility that people wanted. But initially, there was a real concern around that. 

“So I think this is going to challenge people, even in those environments, to think about the adjustments they could make.”

According to White, considering your capacity to provide flexibility can bring huge benefits when it comes to positioning yourself as an employer of choice to attract and retain talent. Beyond that, having flexible work embedded into your business model can also help to advance your organisation’s diversity and inclusion strategy.

“For example, if you’ve got someone who’s a caregiver of an elderly parent, or of children, then they can have the flexibility to accommodate that responsibility. Another example is if you’ve got someone who has a mental health concern, that could mean that they function better at particular times of the day. If you can create that flexibility for them around that, they can be very productive and effective contributors to the workforce.” 

“It’s about being able to accommodate different people’s needs, rather than saying, ‘No, you have to fit in the nine-to-five box.’ Those days are long gone, and have been for quite a while.”

Want to hear more from Nick Ruskin and Michaela White about what the Secure Jobs, Better Pay Bill could mean for your organisation? Sign up for AHRI’s free webinar on 17th February 2023.