In the industrial relations debate, "flexibility" is often code for reducing or cutting penalty rates and requiring people to work longer or different hours, with no compensation or regard for their circumstances. It’s the sort of flexibility that is all take, no give.
But the word "flexibility" is also routinely used to describe work arrangements that accommodate workers’ personal circumstances. It is that type of flexibility that is crucial, for families, carers, and the ill or disabled.
Last week, the federal government released the results of its first national survey of mature-age workers’ barriers to employment.
It surveyed more than 3000 people, aged 45 to 74, and found illness, injury and disability prevented one in five mature-aged people from working in the past five years. And caring responsibilities stopped a third from working as many hours as they wanted to, or working at all.
The Australian Bureau of Statistics study "Barriers and Incentives to Labour Force Participation," most recently released in December 2011, found 1.7 million Australians wanted a job, or, if they had a job of fewer than sixteen hours a week, wanted more hours. The significant workforce participation barriers included child care, other caring responsibilities, and disability or illness.
In other words, people’s individual circumstances can be a barrier to work. Good employers try to accommodate those circumstances if they can reasonably do so. But it is possible for an employer to be able, but unwilling, to accommodate caring responsibilities, or disability.
Employers still stuck in an old-fashioned "one size fits all" mindset might want to revisit the business case for this type of flexibility, which puts employers at a disadvantage in the fight to recruit and retain talent. Employers that won’t accommodate personal circumstances, even though they can, effectively close off large pools of talent, and miss out on the benefits of pro-employee flexibility — like improving their reputation amongst prospective employees, curbing absenteeism, and building productivity and morale.
And, of course, failing to accommodate people’s needs can carry legal risk.
Workers have legal rights when it comes to barriers to workforce participation, although some are inadequate, some workers don’t know their legal rights, and others will be reluctant or unable to exercise them.
An important example is the right to request flexible working arrangements. When proposed, this new right, informed by a UK example (p. 22), was highly contested. Ultimately, the Act included a right specifically for parents of children under school age, or children with a disability aged up to 18, to "request flexible working arrangements".
Greens MP Adam Bandt has a bill before parliament, seeking to extend the right to all employees. And the Australian Council of Trade Unions submitted to the government’s Fair Work Act review (p. 54), that the right should be extended to all parents of an adult child with a disability, workers over 55, and ultimately to all carers.
The review panel agreed the right should be extended, and recommended extending "the right to request flexible working arrangements to a wider range of caring and other circumstances".
The Government is still considering the review panel’s report. But even if the right is extended to cover more workers, that will not guarantee its effectiveness; in addition to its narrow scope, it is largely unenforceable.
Though the law states the request can be refused only on reasonable business grounds, in practical terms it gives only a right to make a request, and a right to receive reasons for any refusal. That is because although the right is part of the National Employment Standards, it cannot be enforced in the same way as the rest of those standards. It is expressly excluded from the enforcement provision. The ability to request extended parental leave has similar limitations.
The original Fair Work Bill expressly prevented any review of the "reasonable business grounds" for refusing the request for flexible work. This attracted criticism and the government ultimately struck a compromise: the Act as passed allows parties to agree, in an employment contract, enterprise agreement or "other written agreement," to Fair Work Australia or another person dealing with a dispute about those reasonable business grounds.
This is still a different and lesser means of enforcing this "right" (and the right to request extra parental leave) compared with the balance of the National Employment Standards. Enforceability is not everything, and it may be that few individuals would try to enforce. But the absence of enforceability removes an incentive for employers to accommodate workers’ needs to avoid even the possibility of review.
And then there’s the issue of awareness.
Last week’s significant study (pdf) from the University of South Australia, "The Big Squeeze: work, home and study in 2012" observed that few people — including mothers of pre-school children — knew of the Fair Work Act’s right to request flexible work. Not knowing about their rights would have to be a significant barrier to exercising them: the study found that the number of requests for flexible work had remained largely the same, or even slightly decreased, since the right was introduced.
Some have been able to successfully use anti-discrimination laws to challenge employers’ failure to accommodate their caring responsibilities, or disability. But successful claims have been few and far between. Many obstacles to running discrimination claims exist; people can be reluctant or unable to complain, or to get the complaint determined.
Discrimination is often conceptually difficult, and can be hard to argue successfully. Discrimination laws tend to apply to people with family responsibilities, or disabilities, as a class, and aren’t necessarily well-suited to dealing with individual circumstances. Potential complainants often tend to have little in the way of money and power, particularly compared with those doing the discriminating.
Moreover, people seeking to have their caring responsibilities or disability accommodated generally want to have a good relationship with their employer, or prospective employer. Anti-victimisation laws notwithstanding, suing your company could well be counter-productive.
So, although legal options are important — they provide an incentive for employers to accommodate people’s caring needs and disabilities, and they help some individuals get their needs taken into account — they are not the most important tool in the kit when it comes to making workplaces more flexible. Culture is more important, as always. And in that culture, "flexibility" should mean removing barriers to work, not for having fewer protections.
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