As most of you probably know we are pretty big advocates of flexible work, we even won the inaugural Sir Ken Robinson Award for Workplace Flexibility last year from the Australian Human Resources Institute.  One of the things we come across regularly is barriers to flexible work that are in old... Read more >

As most of you probably know we are pretty big advocates of flexible work, we even won the inaugural Sir Ken Robinson Award for Workplace Flexibility last year from the Australian Human Resources Institute.  One of the things we come across regularly is barriers to flexible work that are in old policies, procedures and even legislation.  These barriers contribute to the appalling rates of unemployment and under-employment of people with disabilities in Australia.  Until we can move past these restrictions on people even to ask for flexible work we won't do anything to improve the shocking statistics that are every day life for people with disabilities who want to work.

The Fair Work Amendment Act

The Fair Work Amendment Act 2013[1] was lauded as ensuring all Australians have the right to flexible working conditions.

This amendment to the Act enshrines the ‘right to ask’ for flexible working conditions in any new workplace or enterprise agreements in the future as a non-negotiable minimum entitlement.

The Fair Work Amendment Act 2013 gives parents, carers and people with a disability the right to ask their employer for flexible working conditions after twelve months continuous employment as either a permanent part time, or permanent full-time staff member. Long term casual workers may have the same right to ask after a longer period of time.

If you’re a person with a disability, you must be eligible for the Disability Support Pension as well.

So unless your disability is acquired in an accident of some sort or is the result of a sudden illness onset, you are expected to do 12 months continuous work for the same employer, before you have the right (in statutory terms) to ask for flexible working conditions.

In reality, all that’s changed since the Fair Work Act 2009[2] is that people with a disability now have the right to ask, after they have completed a year with their employer, and there is a formal process for ‘asking’, which must be in writing, and to which the employer must respond within 21 days.

How does this differ to other countries who are part of the OECD?

There are significant differences between Australian law and that of other countries in the OECD. The first is the time period elapsed before a statutory right to ask for flexible work kicks in. In the United Kingdom, for example, the statutory waiting period is 26 weeks, and anyone has the right to ask after that time, and there are no restrictions on who has the right to ask.[3]

In Denmark, one of the best performers in employing people with a disability with flexible working, the government has taken a different approach. People with a disability in Denmark are eligible to receive the normal full amount of pay for a job, with the additional flexible working condition of reduced or flexible hours, for which an employer receives a subsidy of one third of the wage from the Danish government. People with a disability are initially employed with flexible work conditions under the scheme, and their rights to flexible working are enshrined in legislation.[4]

In Australia, you must be employed by the same employer for 12 months, have caring or parenting responsibilities, or be caring for a family member who has experienced domestic violence, or have personally experienced domestic violence, be 55 years or over, or have a disability (and qualify for the Disability Support Pension).

There are also legislated directions on why employers can refuse a right to ask, which are specific and narrow. Australian legislation has a very broad range of reasons an employer can refuse flexible working, including ‘reasonable business grounds’.

Reasonable business grounds, the Fair Work Commission[5] states, includes the cost of implementing a flexible working agreement, other employees arrangements cannot be changed to accommodate such a request, it is impractical to hire new employees to job share or work part-time, the change would negatively impact on customer service or a significant loss of productivity.

The bottom line remains that Australian law is more prescriptive about the right to ask as a minimum employment condition than other jurisdictions.  And, particularly so when it comes to people with a disability.

What the Danish government has done openly acknowledges and encourages flexible working conditions for people with a disability from the outset of their employment. Many people with a disability are better able to manage their condition if they are able to work part-time, and from home. This acknowledgement allows the development of legislation and policies that directly addresses employer barriers to offering flexible working conditions for people with a disability.

Why do employers reject flexible working conditions?

There are many benefits for businesses who agree to flexible working conditions for their staff for any reason, not just people with a disability. Employee retention, employee satisfaction, improved productivity, less sick leave and carer’s leave taken, access to a bigger talent pool, reduced business travel, effective virtual teams, more agile infrastructure and reduced overheads. And there are many businesses and employers who realise the benefits of flexible working.

In Australia, the reasons for rejecting a request for flexible work include the term ‘reasonable business grounds’. The Fair Work Commission website defines reasonable business grounds as flexible work arrangements ‘cost’ too much, disturb other employees working arrangements, if it is not possible to hire new employees or change other employees working arrangements to accommodate the request, if there is a negative impact on either productivity or customer service. However, the Act itself does not contain a definition of ‘reasonable business grounds’, so it is open to interpretation.

To people with a disability, however, the problem isn’t the reason for knocking back a request for flexible work, it’s the extreme difficulty of accessing even the right to ask. For many people, the roadblock is simple. Many people with a disability would like to work, but without flexible working conditions their capacity to work is significantly decreased. That makes applying for jobs in your chosen field of expertise very difficult, if you’re looking for skilled work.

A Joint future

If Australia is to genuinely raise the workforce participation rate of people with a disability, there’s two parts of the economy that need to work together. Employers need to openly acknowledge, as in Denmark, that there are significant business advantages to offering flexible working conditions at the point where recruitment takes place.

And governments need to legislate the right to ask as a minimum employment condition for people with a disability right from the word ‘go’.

Without the imperative to consider flexible working arrangements, people with a disability will remain the sector with the highest unemployment rate, and business will remain office based, non-agile, and miss out on one of the best professional talent pools going.








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