Flexibility at work. Are we throwing the baby out with the bathwater?

‘Flexibility’ has always been an aspect of workplace law, and a key obligation on employers.  It is both essential to anti discrimination law, as well as a key element of ‘a fair go all round’ – a fundamental tenet of Australian workplace law for half a century.

The flexibility provisions in the National Employment Standards do little but to codify some of these obligations.   We already knew about them.  But I have recently sensed a change in the way that these provisions are regarded.  Most notably, they are treated by many employers as if they apply only to parenthood,   and specifically to a female parent’s rights to work less without penalty once they have children.  This is a dangerous trend.

These provisions were intended as  a way of allowing people to maintain their careers on top of other personal responsibilities without being discriminated against, or adversely treated.   The provisions are gender neutral, and intended to apply to a wide range of personal characteristics or obligations outside of work.    There are grave dangers in ‘flexibility’ being used as a weapon of workplace negotiation, and in the political discourse as synonymous with ‘womens’ parental rights’.   When a provision is intended primarily to ameliorate discrimination against a certain group, it’s counter-productive to identify that group too prominently as the intended or only beneficiary.  This will always work towards fueling the discrimination, and allowing it to find alternative routes.   We end up throwing the baby out with the bathwater.  Furthermore,  other forms of discrimination  against different groups are allowed to fly under the radar.

In my opinion, one of the major problems in the push towards equality and contemporary work life balance is that fact that many men are still not comfortable requesting ‘flexibility’ from work for family responsibilities.  This is in spite of the gender neutrality of the current provision.   There is still a significant stigma against ‘family men’ in the business community.  This means that in the stereotypical heterosexual working family, it is still too often the woman that is required to ask for flexibility.  This perpetuates the imbalance and the traditional roles.  This project offers an interesting perspective on these issues.

We need to find a way to eliminate the sub-text, and regard “flexibility” as exactly that – “flexibility”.  And to encourage the use of the statutory provisions in an inclusive manner.  Flexibility doesn’t mean that an employee does less work, or is less committed to their job, it simply means that they are attempting balance work against other time sensitive aspects of their lives.  ‘Work life Balance’ shouldn’t always mean working less.  Sometimes, it means allowing employees to achieve more overall with their lives.  As employers, there are ways of regarding the acceptance of flexibility as actually beneficial.

This article at Forbes.com suggests five perspectives.   Firstly, giving employees flexibility is a way of respecting them as people, which will be returned by their own level of respect and ‘buy-in’.  Secondly, providing flexibility broadens your talent pool.  Sometimes, an employer making a slight ‘adjustment’ to their employment expectations can radically increase the amount of talent available for any given position.  Thirdly, allowing people to manage their jobs in a way that fits in with their responsibilities increases morale at work.   Fourthly, many modern employers regard flexibility as more than an employee entitlement, but a strategy which aids the development of an empathetic, energetic and progressive culture.  Finally, the article suggests that employees with an active, well-rounded  life can add value to an employer.

For these reasons, I believe we need start using ‘flexibility’ in a new way.  It’s not a ‘woman’s’ entitlement to do less work for the same money.  It’s a broader obligation, for all of us to frame our business relationships in a balanced, and sensible way for the benefit of everyone, and all aspects of society.

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Helen Carter

Helen has practised exclusively in employment and industrial law for over ten years and founded PCC Lawyers in 2010, having previously a partner of a leading Australian specialist workplace relations firm. She is an accredited specialist in Employment Law by the Law Society of New South Wales. Helen is a working mother who is committed to equal opportunities at work. She is a passionate sports fan, particularly in relation to NRL. Both of these are strong themes of this blog. Contact her here.

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