COVID-19 reality’s push for flexibility in the workplace

There is no doubt COVID-19 has created many challenges for the workplace across industries and the recurring theme of flexibility has become prominent. The Fair Work Commission (FWC) and the Australian Government have taken the initiative to propose greater flexibility in workplace legislation.

Draft award flexibility schedule

On 31 August 2020, Justice Ross, President of the FWC released a statement addressing the need for Modern Awards to recognise and address the working from home arrangements in an attempt to assist employers and employees respond to the challenges COVID-19 pandemic presented/s.

Since the start of the COVID-19 pandemic, one of the greatest shifts is the working from home arrangements. Data from the Australian Bureau of Statistics in May 2020 show that 2 in 5 employed persons were working from home due to the impacts of COVID-19. A briefing paper from the Centre for Future Work suggests that working from home will be more common.¹

Facilitative provisions in modern awards allow employers and employees greater flexibility to vary certain provisions of the industrial instrument, such as a variation in the ordinary span of hours. Under the National Employment Standards, there is the ability for employees to request for flexible working arrangements. However, there currently are not any explicit provisions to facilitate working from home arrangements.

In Justice Ross’ statement, he noted that although working from home is currently possible and permissible, the absence of such a provision in Modern Awards presents constraints. For instance, the ordinary span of hours for working ordinary hours may limit an employee working flexibly as it may create the implication for employers to make penalty payments for hours worked outside the ordinary span of hours.

The draft flexibility schedule is intended to include provisions that will allow employers and employees to reach an agreement while working from home in respect to hours worked, direction to perform duties, direction to work at a different location and staggering of start and finish times.

Justice Ross also recognised that “not all of the clauses proposed in the schedule will be suitable for all awards and some clauses will require tailoring to meet the needs of a particular industry or occupation”.

“Interested parties are encouraged to discuss and reach agreement on the extent of flexibility required and any necessary tailoring of specific terms to meet the needs of the employers and employees covered by particular modern awards.”

Greater parental leave flexibility

On 3 September 2020, the Australian Government announced the introduction of the Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Bill 2020 (the Bill) which will allow parents to take up to 30 days of flexible unpaid parental leave until their child turns two.

The current parental leave regime under the Fair Work Act 2009 (Cth) allows eligible employees to take up to 12 months of unpaid parental leave associated with the birth of a child or placement of a child for adoption. If an employee is on a period of unpaid parental leave, and their child is stillborn or dies, the employee is still entitled to remain on their period of unpaid parental leave unless the employer requires the employee to return to work with 6 weeks’ notice. Employee may also choose to return to work by giving their employer 4 weeks’ notice.

The Bill intends to improve and provide support to employees who experience traumatic events during or leading up to unpaid parental leave, such as stillbirth or the death of a child. The Bill intends to clarify that where an employee’s child is stillborn or dies during the first two years:

• the employee is able to have the same entitlement as employees who are on unpaid parental leave,
• employers will not be able to require an employee to return to work following a stillbirth or death of a child, and
• allowing employees to take compassionate leave following the stillbirth or death of a child.

The Bill’s flexible unpaid parental leave is limited to a maximum of 30 days to be used within the first two years from the stillbirth or death of the child. This is to assist employees in the transition back to working arrangements whilst being able to arrange shared caring responsibilities. The proposed 30 day flexible unpaid parental leave entitlement may be taken in a single continuous period, or separate periods of one or more days. This would be available to full-time, part-time and casual employees.

Implications for you

Although there isn’t an immediate requirement to make any changes, employers should be aware of the current changing environment and having effective communications with employees will allow for greater transparency in the employment relationship. As the working environment and work model changes, employers need to be alive to shifts in legislation as well as evolving work practices.