Application
This Policy applies to all departments and public sector bodies of the State of Victoria and their non-executive level employees, as defined under the Public Administration Act 2004 (Vic) (PA Act) and other Victorian legislation.
Overview
The Government is committed to promoting and implementing flexible, diverse and supportive workplaces that ensure employees can balance work and their personal, family or other commitments outside of work. The Government supports flexible work practices that meet the needs of employees as well as maintaining the needs of the work area to deliver services to the Victorian community.
Balancing the needs of the individual employee and the needs of the business can be achieved through cooperation and consultation between the Government, employers, unions, and employees.
Flexible work
Flexible working (which may include Hybrid work) is one of the key drivers of employee engagement, which is linked to higher productivity, creativity and motivation in the workplace as well as improved employee wellbeing. Access to flexible working is linked to improved organisational productivity, greater workforce diversity, enhanced attraction and retention of employees, and improved employee well-being. To be a contemporary employer of choice, Victorian public sector employers need to cultivate a culture where working flexibly is considered business as usual.
Enterprise bargaining is one way that working arrangements can be reviewed and updated to better provide employees with a meaningful level of control over when, where, and how work is accomplished, for example, to work remotely, change their hours, use leave flexibly, change the days they work or use other options that work for both employee and manager.
There are many types of flexibilities, which can be ad-hoc, short-term or long-term. Examples of flexible working can include (but is not limited to):
- flexible hours of work, including flexible start and finish times
- compressed working week
- job sharing
- tele-commuting / working remotely
- part-time work
- using accrued leave to work part-time or at reduced time fraction
Processes and practices will necessarily differ from agency to agency, but the goal should be to reach an outcome in which an individual’s needs for flexibility are met, consistent with business requirements, industrial instruments, and legislative requirements. And in doing so, noting that depending upon the nature of an employee’s role, not all flexibilities may be available to all roles, but some flexibilities will be an option for all employees.
Flexible Work – Government Expectations
All public sector employers must have a flexible work policy in place, which must be reached in consultation with the relevant union/s and will apply to all employees in addition to the right to request flexible working arrangements under section 65 of the Fair Work Act 2009 (Cth) (FW Act).
The policy must be based on and incorporate the following principles:
- Flexibility is the default position for all public sector roles and is available to all employees regardless of the reason it is being requested, when the employee commenced their employment or the employee’s role. While all roles can include some type of flexibility, not all types of flexibility will be possible in all roles.
- An individual employee’s flexible work arrangements should be discussed at the local level, subject to operational requirements, and should be considered in consultation with both line management and the organisation’s Human Resources or People and Culture Unit (or equivalent), so that there is appropriate oversight and consistent practice across the organisation.
- Managers and employees will genuinely consider all forms of flexible working and an employee’s flexible working request must be responded to within a reasonable timeframe (for example a response must be provided within 21 days).
- The employer may only refuse an employee’s requested flexible work arrangements if they have first discussed the request with the employee and genuinely tried to reach agreement about making the requested changes to the employee’s working arrangements, having regard to the consequences of the refusal for the employee. The refusal must be based on reasonable business grounds. Reasonable business grounds may include:
- that the flexible working arrangements requested would be too costly for the employer
- that there is no capacity to change the working arrangements of other employees to accommodate the employee’s proposed new flexible working arrangements request
- that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new flexible working arrangements requested by the employee
- that the new flexible working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity
- that the new flexible working arrangements requested would be likely to have a significant negative impact on customer or client service.
- that the flexible working arrangements requested would be too costly for the employer
- Where the request is refused, the employer must provide reasons for the refusal in writing. In circumstances where the employer is unable to accommodate the employee’s requested flexible work arrangements, managers should explore possible alternative ways to provide flexibility for the employee.
- Employees who are directly impacted by a decision made, or action taken, pursuant to the employer’s flexible work policy may seek to resolve a dispute through the dispute resolution process described under the employer’s enterprise agreement.
- Flexibility is enabled by organisational systems, processes, and services (including access to technology) and employers should ensure they have appropriate systems in place to support flexible and hybrid ways of working.
- Flexibility is led and role modelled by senior leadership.
- Flexible and hybrid working arrangements will reflect different workforces, organisational arrangements and operational requirements.
- Any flexible working arrangements agreed to should be reviewed on a regular basis to ensure they continue to meet the needs of both the employer and employee.
- Flexible work should not:
- lead to reduced service delivery to the Victorian community.
- negatively impact the achievement of team and the organisation’s objectives.
- materially change the work required or performance of the work.
- lead to reduced service delivery to the Victorian community.
Right to request flexible working arrangements
Under section 65 of the FW Act, certain employees have a legal right to request flexible working arrangements from their employer. This right forms part of the National Employment Standards (NES) under the FW Act.
A request for flexible working arrangements must be submitted in writing setting out details of the change sought and the reasons for the change. The employer must give a written response within 21 days.
An employer may only refuse the request for flexible work arrangements under section 65 of the FW Act if:
- the employer has discussed the request with the employee, and
- the employer has genuinely tried to reach an agreement with the employee about making changes to the employee’s working arrangements to accommodate the circumstances, and
- the employer and the employee have not reached such an agreement regarding the employee’s working arrangements, and
- the employer has had regard to the consequences of the refusal for the employee, and
- the refusal is on reasonable business grounds.
Reasonable business grounds will include, but are not limited to:
- that the working arrangements requested would be too costly for the employer
- that there is no capacity to change the working arrangements of other employees to accommodate the working arrangements requested
- that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the working arrangements requested
- that the working arrangements requested would be likely to result in a significant loss in efficiency or productivity
- that the working arrangements requested would be likely to have a significant negative impact on customer service.
If the employer refuses the request, the written response must:
- include details of the reasons for the refusal and setting out the employer’s particular business grounds for refusing the request and explaining how those grounds apply to the request; and
- either set out the changes (other than the requested change) in the employee’s working arrangements that would accommodate, to any extent, the circumstances mentioned by the employee in their request and that the employer would be willing to make, or state that there are no such changes; and
- set out the avenues available to the employee to resolve any disputation, which must include:
- in the first instance, the employer and employee must attempt to resolve the dispute at the workplace level, by discussions between them.
- if discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the dispute to the Fair Work Commission and to be dealt with in accordance with section 65B and 65C of the FW Act.
- in the first instance, the employer and employee must attempt to resolve the dispute at the workplace level, by discussions between them.
Individual Flexibility Agreements
Division 5 of Part 2 – 4 of the FW Act requires that all enterprise agreements include an individual flexibility term that enables an individual employee and their employer to agree to working arrangements which vary the effect of an enterprise agreement in relation to that individual in order to meet the genuine needs of the individual employee and employer. If an enterprise agreement does not include a compliant individual flexibility term, then the model flexibility term as provided in Schedule 2.2 of the Fair Work Regulations will apply as if it is a term of the enterprise agreement.
The individual flexibility term allows an employer and employee to enter into an individual flexibility arrangement (IFA) to vary the effect of terms of an enterprise agreement dealing with arrangements such as when work is performed, overtime rates, penalty rates, allowances or leave loading (or any other provision as agreed in the flexibility term in the enterprise agreement).
Public sector employers are encouraged to adopt the model provision provided in Schedule 2.2 of the Fair Work Regulations and agree to engage with employees and their union(s) and/or employee representatives on the terms of the enterprise agreement which may be varied by an IFA.
Importantly, IFAs:
- may be initiated by the employer or employee but should not be used by public sector employers to undermine collective bargaining,
- must genuinely be agreed in writing and signed by both the employer and employee,
- must result in the individual employee being better off overall than the employee would have been if no individual flexibility arrangement was agreed to,
- cannot be used to reduce or remove employee entitlements, and
- may be ended at any time by written agreement between an employer and employee. Otherwise, the IFA can be ended by giving the other party appropriate notice detailed in the flexibility provision in the enterprise agreement or FW Act as appropriate.
Further Information
For further information and advice employees and public sector union representatives should contact the local Human Resources or People and Culture Unit (or equivalent) of the relevant entity in the first instance.
People and Culture Representatives of Public Sector Entities should contact their Portfolio Department for further assistance in the first instance.
People and Culture Representatives of Portfolio Departments should contact their usual Industrial Relations Victoria portfolio contact for further assistance in the first instance.
Related Policies or Documents
- Enterprise Bargaining and Agreement Making
- Right to Disconnect
- Alternative ways of working
Updated