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What if Flexibility Became the New Normal Post Covid-19? (by Dr Dominique Allen)

23rd April, 2020

I’m very pleased to publish this third guest contribution on the Labour Law Down Under Blog, by Dr Dominique Allen – Senior Lecturer in the Department of Business Law and Taxation at Monash University. Other guest contributions are invited from the academic community, especially on issues relating to the impact of COVID-19 on work, workers and the regulatory framework for employment relations. Email me at: anthony.forsyth@rmit.edu.au

Almost 25 years ago, a Victorian Parliament Hansard reporter named Deborah Schou asked her employer if she could work from home two days per week so that she could care for her sick child.  Her employer accepted Schou’s request and promised to install a modem in her home but after 11 weeks, the promised modem never eventuated and Schou resigned.

Schou’s indirect discrimination claim ultimately failed after a tortuous journey that began at the Equal Opportunity Commission and ended at the Victorian Civil and Administrative Tribunal after trips to the Supreme Court and the Court of Appeal. Back then we were not at the point where being flexible and supporting women to work from home was acceptable.

Why am I thinking about the Schou case now? Well, I write this at a time when many employees around the country are adjusting to the ‘new normal’ of working from home. This new routine involves online meetings, battles with technology, odd working hours, self-motivation and the demands of home schooling (which involves more battles with technology).

We are finding that there are benefits to working from home – no daily commute, more flexibility in structuring our workday, and increased productivity but there are drawbacks including distractions, procrastination, loneliness, sharing a workspace with a partner and/or children, and drawing a line between home and work. These are all made more difficult by the challenges brought about by the Covid-19 shutdown – isolation, confinement, lack of fresh air and exercise, economic uncertainty and anxiety caused by an endless newsfeed about the virus.

I’ve been wondering how far have we progressed since the Schou case, and whether the Covid-19 crisis will be the shock we need to re-evaluate working arrangements, particularly for parents and carers. Will this crisis change the perception employers have about working from home? And, more importantly, will it make workplaces more inclined to agree to requests for flexible working conditions?

Let’s not forget that we have a right to request flexible working conditions in section 65 of the Fair Work Act 2009 (Cth) and it covers a broad range of employees. It isn’t just about women with caring responsibilities. Men can seek it too, and perhaps after this experience more men will. The right extends to employees who need to care, not only for school-aged children or younger, but also for people with a disability or ageing parents.

What it isn’t, though, is a right to flexible working conditions. It’s a right to start the conversation, to ask an employer to consider the request and, if flexible working conditions aren’t possible, to explain why not.

In Victoria we have a much stronger law, which came about in the aftermath of the Schou decision. Under s 19 of the Equal Opportunity Act 2010 Victorian employers have an obligation to accommodate an employee’s parental or caring responsibilities unless that would be unreasonable. Employers need to weigh up a range of factors when they make this assessment such as the nature of the business, the employee’s role, what arrangements the employee has requested and how this would fit with their role. Employers must consider the request and determine if it would be practical to implement it; they can’t just deny it.

The last month has not been easy for many reasons. We are not all working from home in normal let alone optimal conditions (as I write this from a standing desk on my dining table, my webcam on back order).

This way of living and working won’t become the new normal. Schools will reopen. We will return to our workplaces. Some will have enjoyed the increased flexibility of working from home whereas there will be others who can’t wait to return to their workplace. I like the flexibility of being able to combine the two modes.

If this working from home experience comes with a silver lining maybe it will be that more employers realise that flexibility can work and properly consider any requests. There’s no reason why workplaces can’t offer a mix of working arrangements. Hopefully once the crisis is over, more employers and employees will start talking about the ways in which they can both be more flexible.

Imagine if that became the new normal.

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