No Match Found
How IR reform is needed around flexibility to support COVID-19 recovery
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In March 2020, thousands of Australian organisations asked their employees to work from home, signalling one of the greatest unplanned experiments in workplace relations ever seen. Over four million workers ditched the commute, set up a computer in the lounge room or bedroom and began to work remotely.
Now the tide is starting to turn. With known COVID-19 community transmission reduced to zero for now, some organisations are beginning to call their workers back to the office. The Federal Government is eager for a return as well, urging workplaces to get back to normal as quickly as possible.
But returning to ‘normal’ is proving to be anything but straightforward. Employers have taken care to turn attention to making workplaces safe, but also need to consider undoing flexibility created through our collective response to the pandemic.
Many workers have benefited from greater flexibility: avoiding long commutes, being closer to family during a time of concern, and generally proving that there is a capacity in some industries to work remotely in a relatively seamless way. Other workers have lost support structures in place prior to COVID-19 remote working arrangements, particularly those dependent upon childcare and domestic assistance to aid with carers’ responsibilities. While some are relishing being among colleagues again, many are unwilling to return to office-based work on a full time basis.
So how do organisations navigate the months ahead, particularly if they want their employees back in the workplace as soon as possible? And what do they do if employees want to keep working from home?
There are a number of key factors to consider.
The work from home experiment has changed how employers and employees view remote work, now and in the future. Once applicable only to the few, employees now consider it an option available to the many.
The capacity for remote work can also be nuanced. Employees have come to understand that while some parts of a role can be done remotely and other parts are better carried out in person. Our own Future of Work Jam surveyed 8,000+ of our people, and 75% of PwC team members told us they would prefer to perform administrative work remotely, and 67% said they would prefer to carry out individual tasks at home. On the other hand, 66% of respondents would prefer to connect with people as part of work at a physical workplace. The factors that drive a desire to work from home may vary according to workforce, workplace and worktype.
Some workers have special rights to seek workplace flexibility, for example, due to carers’ responsibility or age. More generally, requests for flexible working arrangements have engendered a need to ensure avoiding discrimination on related, protected grounds. Employers have always had the right to refuse requests for flexible work, broadly speaking, on ‘reasonable business grounds’. Reasonable business grounds have generally extended to matters like impact on other employees, cost, and need for customer interaction.
However, the lived experience of the pandemic is causing organisations to rethink the business case against flexibility. As an unanticipated workplace experiment, remote working during the pandemic has shown that large workforces can operate remotely and effectively over an extended period. Pre-COVID-19 arguments against flexibility, such as impact on quality, performance or customer service, are likely to have become less persuasive in a number of industries.
Another factor to consider is the way that people may have reorganised their lives as a result of working from home, whether by choice or circumstance. Many workers have had to adapt childcare arrangements due to changes in schooling, childcare centre operation, and isolation of elderly parents who would otherwise provide support. Others have taken on caring responsibilities for vulnerable family members. Some have moved to more affordable housing further away from work given an reduced need to commute.
COVID-19 has impacted people in very different ways. Some want more flexibility; others need more flexibility. Employers must be careful not to impose arbitrary and one-size-fits all rules about returning to work. They will need to consider individual requests on their own merits, taking into account particular employee circumstances.
Employers also need to take into account the flexibility policies and procedures that existed pre-COVID-19, and pre-existing flexibility arrangements with individual workers. These arrangements may require employee consent to change.
The above dynamics have forced workplace regulators to consider how current laws can better facilitate workplace flexibility.
Whilst COVID-19 “flexibility schedules” have been inserted into a number of modern awards, these provisions are temporary and do not provide a long-term solution to the practical constraints that modern awards may have on flexible work arrangements. By way of illustration, without these flexibility schedules, provisions in some modern awards may trigger overtime, loadings or penalty rates in respect of out-of-business working hours, even if these arrangements may benefit employees.
In September, the Fair Work Commission released a draft modern Award schedule addressing working-from-home arrangements. This represented a significant turning point, given that most modern awards have not historically addressed these arrangements in a specific way. It is intended that the model Schedule be used as a starting point for discussions between interested parties.
Organisations need to lean into this new reality. Many people will want to return to a physical workplace, but many may not – the best way to manage the inevitable disputes that will arise is to build trust with your employees. This means making sure work is safe, considering requests for flexibility on their merits, and having open and honest conversations about why a return to the physical workplace is necessary.
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