Employers fail to grasp new flexible work arrangement rules: Survey

SMEs are badly unprepared for the introduction of new workplace laws on 1 January 2010 that will allow employees to negotiate flexible workplace arrangement, a new survey shows.

Over 80% of managers and employees surveyed had “non-existent” or “low” knowledge of the “Right to Request Flexibility” legislation, which comes into effect on 1 January under the Federal National Employment Standards.

But 74% of respondents expected the legislation to increase requests for flexibility, the survey by Aequus Partners and CCH Australia found.

“There’s a huge gap in what employers are expecting and the degree to which they are prepared for it,” says Aequus Partners’ Juliet Bourke.

“We found that 81% had no knowledge of details like how to actually apply for these arrangements; the fact that it needs to be in writing; the consequences for not complying.”

“Unless employers act now, confusion will abound on 1 January 2010, non-compliance will be a certainty and access to flexibility by eligible employees will be thwarted.”

The survey questioned 529 managers and employees from small, medium and large businesses across the country.
But HR managers scored higher than employers, with 50% having “high” or “medium” knowledge on the topic.

“They are the ones who are confident they can do it properly, says Bourke. “So although we do need some top up, the knowledge is there. It’s overwhelmingly a timing issue – and January is not far away at all.”

Bourke blamed employers’ lack of preparedness on their adjustments to the Fair Work System legislation introduced last July.

“Employers have got caught up in that, but a lot of it is rollover of older legislation, whereas the flexibility requirements are completely new and that is what they really need to be focusing urgently on.”

The flexibility component of the National Employment Standards means employees can request flexible working arrangements, such as varied starting hours or part-time work, or arrangements that allow an employee to care for a child up to school age or a disabled child up to 18 years of age.

An employer may refuse such a request only on “reasonable business grounds”, which must be provided in writing to the employee.

But industrial relations lawyer Peter Vitale from CCI Lawyers says the new arrangements could actually simplify the process for employers, as previously there have been no formal mechanisms for employee and employer to reach an individual agreement on flexible work arrangements.

But Vitale says that a “no disadvantage” requirement means the employee must be better off under any employer negation than under their award, Vitale says.

He also says the new rules allowing individual negotiations could help protect employers from union pressure.

“With current enterprise bargaining, unions are trying to protect their position by requiring notice of any flexibility arrangement.”

“But unfortunately, the new arrangements won’t really stop union pressure – it will probably only get more sophisticated.

However, Vitale says it will be difficult for employers to completely understand the new rules until next year when the new rules are tested before the IR umpire, Fair Work Australia.

“No-one will be able to completely understand these details until we see some legal action on it.”