Editor's note to readers
Welcome to this edition of Human Capital Matters (HCM)—the digest for leaders and practitioners with an interest in human capital and organisational capability. Human Capital Matters seeks to provide Australian Public Service leaders and practitioners with easy access to the issues of contemporary importance in public and private sector human capital and organisational capability. It has been designed to provide interested readers with a guide to the national and international ideas that are shaping human capital thinking and practice. The inclusion of articles is aimed at stimulating creative and innovative thinking and does not in any way imply that the Australian Public Service Commission endorses service providers or policies. It is intended that the articles are accessible for the general reader, do not require subscriptions to specific sites and, where possible and appropriate, editions of HCM have been reviewed by topic specialists to provide range and currency on topical issues.
Additional hyperlinks/references for those with librarian support or access to specific, user-pays sites may also be provided.
Thank you to those who took the time to provide feedback on earlier editions of Human Capital Matters. Comments, suggestions or questions regarding this publication are always welcome and should be addressed to: humancapitalmatters [at] apsc.gov.au. Readers can also subscribe to the mailing list through this email address.
This edition looks at flexible working arrangements.
The Australian Public Service Commission's publication, HCM Volume 7, 2013 highlighted flexible working arrangements as part of the 2011 APS Bargaining Framework. The framework provided clear direction that flexible attraction and retention initiatives were mandatory for all APS workplace arrangements. Flexible arrangements were seen to be changes to hours, patterns and places of work. They were seen to be a way of accommodating staff needs and managing work-life balance. The major barrier was viewed to be workplace culture. A degree of complexity was also apparent in managing multiple employee needs and sustaining core business requirements, especially in service-focussed industries.
This 2016 edition of HCM will look at additional articles and provide an update on practices and case-studies for flexible working arrangements. A review of the legal framework for flexible work under the Fair Work Act (2009) is also given. The Act covers most Australian workplaces and sets clear rules and obligations in regard to enterprise bargaining and how enterprise agreements, which include flexible working arrangements, are made and approved.
The list of articles is:
- The first article is a summary of the Fair Work Act (2009) provisions for flexible work.
- The second article is a 2016 government business publication which defines and characterises flexible working arrangements.
- The third article is a user-friendly guide to facts and myths about flexible working arrangements from the Victorian Public Sector Commission (VPSC).
- The fourth article is a summary of the tools provided by the VPSC for managers and employees when considering flexible working arrangements.
- The fifth article discusses the recently released APS Disability Employment Strategy, 2016-19, in which flexible working arrangements are seen as a key action for consideration.
According to the Fair Work Ombudsman, the Fair Work Act (2009) (FW Act) 'seeks to promote workplace flexibility through the use of individual flexibility arrangements (IFAs). IFAs allow for variations to modern awards or enterprise agreements in order to meet the genuine needs of employers and individual employees while ensuring minimum entitlements and protections are not undermined. Every enterprise agreement must include a 'flexibility term'. If it doesn't, the model flexibility term set out in the Fair Work Regulations 2009 applies.
An IFA can be enforced.
Flexibility terms vary according to whether the employee works under an award or an enterprise agreement.
Under an enterprise agreement an IFA can vary only those aspects that are set out in the flexibility term contained in the agreement ('permitted matters'). Permitted matters can range from a limited group through to all the terms contained in the agreement. The parties to the agreement decide what might be permitted matters.
Under an award, IFAs can only vary when work is performed (as in working hours); overtime rates; penalty rates; allowances; and, leave loading.
The website contains a wealth of information concerning, among other things, how individual flexible arrangements are made (they can be initiated by either an employer or an employee); and how they are authorised (it must be in writing and signed by both the employer and employee). The employer has responsibility to ensure a copy of the IFA is given to the employee. There are some things that can't be included in an IFA; for example, discriminatory terms.
The case-study given by Fair Work is of an employee whose working hours vary from the terms laid out in his organisation's enterprise agreement but which meet the employee's carer responsibilities and preferences as well as meeting the employer's needs.
Australian Government Business (updated 9 May 2016) Flexible working arrangements [accessed 7 July 2016]
The Australian Government Business web-site provides examples of flexible working arrangements to include:
- Flexible location - for example, working from home or from somewhere other than the office (teleworking)
- Flexible hours - for example, changing start or finish times to accommodate personal or family commitments
- Flexible patterns - for example, working longer days to provide for a shorter working week
- Flexible rostering - for example, split shifts
- Job sharing - where two or more employees share one full-time position
- Graduated return to work - where an employee returns to work part-time and gradually builds up to full-time work by an agreed date (for example, after parental leave or extended sick leave)
- Purchased leave or '48/52 leave' - where employees take an extra four weeks' leave per year by getting less pay (getting 48 weeks' salary paid over 52 weeks).
In terms of employees' rights, considerations for employers are: has the employee worked for the organisation for at least 12 months continuously, regularly and systematically and is likely to continue to work regularly? If yes, then the employee has the right to ask for consideration of flexible working arrangements if they meet the following conditions:
- They are a parent of a child who is school age or younger.
- They have responsibility to care for a child who is school age or younger.
- They have carer responsibilities.
- They have a disability.
- They are 55 or older.
- They are experiencing family or domestic violence.
- They are supporting an immediate family or household member who requires support because of family or domestic violence.
- They must apply in writing, give details of the proposed change and list their reasons for the request.
These rights come from the National Employment Standards (NES) in the Fair Work Act 2009. An employer must respond in writing within 21 days and entitlements under their award or enterprise agreement still apply. For example, if the employee requests an earlier start and penalty rates apply for that time than the employee must be paid the penalty rates.
Recommendations to manage flexible working arrangements include:
- Develop a clear policy
- Ensure policy is kept up-to-date
- Stay current on rights and responsibilities
- Note all staff can request flexible working arrangements, not just those covered under the NES
- Discuss requests with the employee so that all options might be considered in the light of all the information
- Consider alternatives if the request can't be met.
The Fair Work Ombudsman website is listed as the first port of call for any questions about arrangements and relevant laws.
Victorian Public Sector Commission. Flexible work myths and facts. Listed as current at March 2015 [accessed 6 July 2016]
This publication by the VPSC aims to clarify parameters and dispel concerns about implementing flexible working arrangements. It underscores the responsibility of line managers to assess, implement and manage flexible work requests. It provides guidance by way of tools and templates.
Emphasis is given to the following:
- Every public sector employee is entitled to request consideration for flexible working arrangements
- A manager is not required to automatically approve a request. Requests must be considered in light of the employee's work requirements, practicality of the requested arrangements, potential impact on the workplace and core business, the effect on the team and workload, technology implications and any consequences if the request is not approved1.
- Each request is considered on its unique merits in the light of the points made above. There are no good or bad, deserving or underserving reasons to request flexible working arrangements.
- Senior staff can also seek consideration of flexible arrangements.
- Formal reviews of flexible workplace arrangements are essential to determine the impact on business and whether the employee's needs are being met.
- Employees are responsible for organising their work including any handover requirements and communication strategies to work effectively within their teams.
- Clear boundaries between work and personal time are necessary. Employees working under flexible arrangements are not required to be available outside their agreed arrangements.
- Progression and performance pay still applies for employees working under flexible arrangements. Employees must still be assessed on their performance against their agreed performance plan.
- Promotion considerations must be against the full functions of the higher-level role. Any flexible arrangements need to be re-negotiated in light of the new role.
This document is accompanied by online tools for self-assessment and guidance for developing a culture that supports flexible working arrangements. These have been summarised in the next article.
Victorian Public Sector Commission. Making Flexible Work a Success: A Guide for Public Sector Managers and Employees. Listed as current at August 2015 [accessed 6 July 2016]
Making Flexible Work a Success contains two tools: Managing Flexible Work and What Type of Flexible Working Arrangement Will Work Best. Both were current as at August 2015.
Managing Flexible Work is a self-assessment survey which aims to prepare managers to deal with requests for flexible arrangements and to set expectations for and in the team. It directs the manager to seek advice as needed in regard to policies and employee legal entitlements. It underscores the importance of the manager's being able to manage team performance, give and receive feedback, set performance objectives, model work-life balance practices, design jobs that accommodate flexibility and include team members in planning.
What Type of Flexible Arrangements Works Best is an employee self-assessment and asks the employee to consider what they need to achieve a work-life balance in light of the requirements of the job they do. It asks about preferred working style, expectations and what the individual understands about impact (e.g., pay and superannuation) and is prepared to trade with the employer to gain more flexibility (e.g., preparedness to work additional days if required). It also suggests that the employee consider the impact on the team and options if the request is denied.
Australian Public Service Commission, 2016. As One: Making it Happen, APS Disability Employment Strategy 2016-19. Australian Government, Canberra
As One: Making it Happen, APS Disability Employment Strategy 2016-19 builds on the earlier disability employment strategy paper published in 2012. It represents the Commonwealth's response to the National Disability Strategy 2010-20.
The 2016 Strategy lists actions to achieve goals related to improving the representation of people with disability in the APS workforce. Actions include expanding the range of employment opportunities for people with disability, investing in capability development and increasing the representation of people with disability in senior roles.Job modifications and flexible working arrangements are seen as key actions to ensure people with disability are provided maximum employment
1 Hunt & Hunt Lawyers produced a document in 2012, Flexible working arrangement: when is it ok to say no in which the meaning of 'reasonable business grounds' on which to refuse an application for flexible arrangements was discussed. Reasonable grounds included the effect on the workplace and the business, including financial, efficiency, productivity and customer service; the inability to organise work among existing staff and the inability to recruit or put in place practical arrangements to accommodate the request. A case study is discussed in which a single parent's request to start and finish work later to allow for care of a child had been rejected. The employee appealed to Fair Work Australia (FWA) as allowed in the enterprise agreement. The FWA upheld the employer's refusal on operational and occupational health and safety reasons despite finding that the applicant's request was genuine. Hunt& Hunt noted that a review of the Fair Work Act circa 2012 did not include a definition and in fact resisted arguments to include a definition of 'reasonable business grounds'. The review panel stressed, as reported by Hunt & Hunt, that the government's clear intention is that 'the reasonableness of the grounds is to be assessed in the circumstances that apply when the request is made' though it may be appropriate to seek further guidance from FWA.