Fay Calderone is a partner in the employment and workplace relations team at Hall & Wilcox in Sydney and a former winner in the private sector category of our Women’s Agenda Leadership Awards.
She’s also a Flexible Work Day Ambassador and passionate advocate for making flexibility a reality for everyone. Below she outlines the things to now about flexible work, starting with the laws around it.
As a Flexible Work Day Ambassador, I advocate for flexibility as being imperative to the creation of diverse and inclusive workplaces. Inclusive workplaces undeniably enhance organisational effectiveness, competitive advantage, enjoy better decision making, improved morale and people management and deliver higher returns to shareholders.
As the world of work is changing, employees are increasingly working remotely and the four walls of the workplace are evaporating. Flexible work arrangements are increasingly becoming reasonable adjustments that can be reasonably accommodated not only without hardship to employers, but indeed with improved productivity and efficiencies.
Flexibility must be openly and unreservedly available to all employees.
If we are ever going to achieve gender equity and increase the number of female leaders, executives and board members, they must be enabled in the same way their male counterparts have been for years. If the negative stigma attached to males requesting flexibility and assuming caring and domestic roles is not removed, women will always be at a disadvantage trying to have it all while they do it all.
This position is reached after years of assisting employers grappling with the implementation of flexible work, advocating for the benefits of diverse and inclusive workplaces and the advancement of professional women. The move to flexible work as the ‘new normal’ has certainly been an evolution. Following is the back story.
The Australian National Employment Standard in the Fair Work Act 2009 (the NES) applies to all employees covered by the national workplace relations system and includes a right for certain employees to request flexible working arrangements from their employer. An employer can only refuse such a request on “reasonable business grounds”.
More specifically, the requests may be made by:
- permanent employees who have completed at least 12 months of continuous service with their employer immediately before making the request; and
- casual employees who have been employed by the employer on a regular and systematic basis for a sequence of periods of employment of at least 12 months immediately before making the request who have a reasonable expectation of continuing employment by the employer on a regular and systematic basis.
Eligible employees are entitled to request a change in their working arrangements if they:
- are the parent, or have responsibility for the care, of a child who is of school age or younger
- are a carer (within the meaning of the Carer Recognition Act 2010)
- have a disability
- are 55 or older
- are experiencing violence from a member of their family, or
- provide care or support to a member of their immediate family or household, who requires care or support because they are experiencing violence from their family.
Examples of changes in working arrangements may include:
- changes in hours of work including reduced hours and changes in start and finish times
- changes in patterns of work such as job sharing or split shifts
- changes in location of work including work from home
Employers must give employees a written response to the request within 21 days, stating whether they grant or refuse the request and may refuse the request only on reasonable business grounds. If the employer refuses the request, the written response must include the reasons for the refusal.
Further, it is unlawful under:
- the Fair Work Act to take adverse action against an employee including termination (with civil penalties for breach); and
- state and federal discrimination legislation to discriminate against employees, directly or indirectly in their employment, because of their family or carer’s responsibilities.
Employers must accommodate their employees’ family and carer responsibilities where it is reasonable to do so. Whether a refusal to accommodate such requests is unreasonable will depend on the facts and circumstances of the particular situation. A defence is available to employers on the basis that an adjustment is not reasonable if it would cause an unjustifiable hardship on the employer taking all circumstances into account, including consideration of:
- the benefits of the arrangement to the employee, other staff and clients;
- the effects on the employer and all the people involved if they don’t provide the arrangement; and
- the costs involved in relation to their financial circumstances.
Reasonable grounds for refusal for a small employer may differ vastly to those that are reasonable for a large, well resourced employer.
In early 2009, in collaboration with HRD Magazine, I led and reported on a nationwide survey to identify what employers were most concerned about in the lead up to the introduction of the 10 minimum employment entitlements in the NES in January 2010.
Frighteningly, employers expressed the most concern about the two new provisions which related to accommodating employees’ family responsibilities. Almost 40% of respondents were “extremely concerned” or “concerned” about the new entitlement to flexible work arrangements for employees with children under school age, and 52.3% of respondents were “extremely concerned” or “concerned” about the right to request increased parental leave.
This was despite 86.9% of respondents having well utilised flexible working arrangements or “work-life balance strategies”. Employers claimed to face a range of challenges and business barriers in accommodating such requests including technological barriers, lack of infrastructure, trust and confidentiality concerns, as well as impacts on productivity and workplace culture.
At the time, I observed that employers seemed “reticent to fully embrace flexible work policies which require an adjustment to not only the way an organisation operates, but also how it thinks. Properly implementing flexible work practices involves challenging assumptions about how things must be done and coming up with new and innovative ways of utilising staff. Rigidity, inflexibility, fear of loss of ‘control’ and not knowing what to do or how to do it seem to be major psychological barriers for employers.”
Almost a decade later, it seems we’ve moved on a little. Whilst many workers still face push back or penalties for flexible work and employers struggle with implementation, the minefield of literature and initiatives embraced by Australian businesses and leaders suggest we’ve moved on quite a lot. Granted, there’s still work to be done.
Diverse and inclusive workplaces
Flexible Work is a key building block for the creation of diverse and inclusive workplaces. Inclusion has been identified as occurring when diverse groups of people are “respected, connected, progressing, and contributing to organisational success” and has been referred to as the mechanism through which diverse perspectives are heard, respected and supported. Inclusion strategist Verna Myers said if “diversity is being invited to the party, inclusion is being asked to dance”.
In launching its inclusion strategy, SBS noted people reach their full potential and feel empowered when they are free to come to work and to be their authentic selves. This fosters environments where employees freely contribute, fuelling innovation and creativity and ultimately enabling employers to attract and retain the best talent.
The Diversity Council Australia Inclusion@Work Index reports that inclusion at work fuels team performance and boosts employee satisfaction, success and security. More specifically, it reports employees who work in inclusive teams are:
- Ten times more likely to be highly effective than workers in non-inclusive teams;
- Nine times more likely to innovate;
- Five times more likely to provide excellent customer/client service;
- Nineteen times more likely to be satisfied with their jobs;
- Four times more likely to stay with their current employer;
- Two times more likely to receive regular career development opportunities; and
- Almost seven times less likely to have personally experienced harassment and/or discrimination in the past year
Creativity and productivity gains
The nature of current office environments including open plan working, constant emails, calls and meetings, leaving at best windows of few minutes at a time without interruption, is such that employees are increasingly reporting an inability to concentrate at their desks. I can attest to having a tendency to take to a quiet cafe when working on a complex piece of work or needing to get the creative juices flowing in the lead up to a presentation.
According to best selling author of Deep Work Cal Newport ‘deep work’ is “the ability to focus without distraction on a cognitively demanding task. It’s a skill that allows [us] to quickly master complicated information and produce better results in less time.” Cal says deep work makes us better at what we do and provides the sense of true fulfilment that comes from craftsmanship, likening it to a “super power” in our increasingly competitive twenty-first century economy.
Kat Boogaard also recently wrote in The Coffee Shop Effect: Why Changing Your Location Boosts your Productivity that “the human brain has been proven to constantly seek novelty as often referred to as ‘shiny object syndrome’. When we’re presented with something new and exciting our brain releases dopamine (the ‘feel good’ chemical) and responds by creating new pathways and mechanisms to accomplish tasks.”
Productivity surveys have revealed that 65% of workers think flexible and remote work would increase their productivity. Experts recommend working in 90 minutes blocks to maximise productivity and working without interruption on challenging tasks for 60–90 minutes before taking a break and checking emails.
A global survey of more that 24,000 people unearthed the ‘need’ for flexibility in the workplace in order for business to thrive, the highlights being:
- Sixty-two percent of the global working population take advantage of flexible working practices;
- Ninety-eight percent of respondent’s state that anywhere working has a positive impact on productivity; and
- Sixty-two percent ‘want’ access to collaboration technology to enable them connect to their colleagues with 92% believing video collaboration technology helps improve relationships and fosters better teamwork.
The term flexism has been used by mainstream media and Flexible Work Day founder and advocate Vanessa Vanderhoek to describe discrimination or adverse treatment of individuals who access or express a desire to access flexible work arrangements.
The Chief Executive Women and Global Management Consultancy Bain & Co 2016 Report on ‘The Power of Flexibility’ (CEW Report) confirms that “in order to advance gender equality in the workplace, flexible arrangements must be available to and actively supported for both genders” and that “where flexible arrangements are widely used, all employees are four times happier”.
In order to normalise and accelerate the success of flexible working the report concludes organisations must:
- Actively encourage and role model the uptake of flexible work arrangements;
- Ensure flexible arrangements are supported and working successfully for both genders;
- Create the right culture and support employee priorities of career progression, visible support from the CEO, leadership team and colleagues, and respect of boundaries;
- Create clear policies around promotion and compensation when working flexibly; and
- Ensure technology and an agile work environment are in place and working well.
Unless both men and women are equally encouraged to access flexible work and share family responsibilities, we will continue to see women struggle with the juggle, with dramatic drops in the progression of women to leadership positions. The stagnation is staggering with data revealing that despite more women graduating from university than men, women account for only 13% of key management personnel in ASX200 companies. Closer to home in our own profession, 60% of new entrants to the legal profession over the last year are female, yet according to the Australian Financial Review only 25% of equity partners across Australia in 2017 were female.
Catherine Fox references the CEW Report in her award winning book Stop Fixing Women noting that “women are still far more likely to work part time in Australia and men who decide to take the flexibility track face a wall of disapproval and career penalties”. She refers to anecdotal material regarding workplaces, particularly professional services environments, not adjusting to flexibility but instead changing the job status of those who work flexibly by moving them out of client facing roles. Frankly, this is not possible if flexibility is the norm.
The move to agile working
There is no question that flexible work is a critical enabler in retaining women in the workforce and empowering them to progress to leadership roles. According to Vanessa Vanderhoek, in order to tackle flexism, we must let go of stereotypes attached to flexible work as being reserved for ‘working mums’. In order to reap the benefits that flexible or ‘agile’ work has to offer, Vanessa advocates “we must challenge and transform our views about flexible working – in relation to our careers and colleagues, personal and family life, health and wellbeing.”
To this end, the Diversity Council of Australia last year launched ‘Future-Flex’ its initiative focused on “mainstreaming flexibility by team design” emphasising the need to move away from ad hoc arrangements for individuals and towards involving their teams to redesign work. Specifically, the guidelines recommend:
- Reviewing the components of all team members’ jobs (e.g. tasks, duties, responsibilities, location, timing), rather than just one individual employee’s; and
- Having employees and managers work together to come up with team-based flexibility solutions, rather than managers doing this in isolation or with just one employee.
Along the same theme, the FlexAgility Group promotes that flexible and agile working is a “win win” for the organisation and the people they employ and goes beyond “an accommodation” for parents. Rather it’s said to be a strategy that enable competitive business edge in the ever changing world of work
The next generation
The next generation crave flexibility. The Deloitte 2017 Millennial Survey reveals that “flexible working continues to be a feature of most millennials’ working lives and is linked to improved organisational performance, personal benefit, and loyalty”. The report further observes the solid foundation of trust that enables organisations to increasingly offer and operate flexible working arrangements. Overall, 84% of millennials reported some degree of flexible working ranging from flexible start and finish times, flexible roles, flexible recruitment (eg crowd sourcing talent or different contracts) and flexible locations including work from home.
These arrangements are not identified as “simply a nice to have” but as being strongly linked to improved performance, employee retention and loyalty. Further, the report notes that organisations that have adopted flexible work indicated any earlier misgivings that opportunities would be abused appeared to be unfounded with 78% of respondents feeling trusted by they line managers.
The report concludes “millennials appear to want the best of both worlds, freelance flexibility with full-time stability”. For them, it is not about work-life balance, but rather integration.
The new normal
According to a recent HRD report referencing a poll by Hays (notably nine years after the NES survey mentioned above), HRD reports that flexible work has become more accessible, transparent and the “new normal” and that 89% of employers believe that flexible work arrangements are “very important” or “important” when it comes to staff attraction and retention.
Flexible work is indeed becoming the new “normal” in many workplaces. It is not a nice-to-have, but necessary to attract and engage the next generation of workers, to accommodate the needs of an ageing workforce and ensure we tackle flexism and see more women emerging into leadership roles. Flexibility as the norm provides the structural foundation to build diverse and inclusive workplaces that organisations and our society reaps the benefits of. To that end, flexible work benefits everyone.
This content is general commentary and opinion of the writer provided for information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied upon as legal advice. Readers should obtain specific advice relating to their particular circumstances.
This post first appeared on LinkedIn and was republished with permission.