Sleepwalking into permanent flexibility

The 11th of March, 2023, marked the third anniversary of the World Health Organisation declaring COVID-19 a global pandemic.

During those three years, the lives of all Australians were turned upside down in what, at times, felt like a fever dream. This was particularly the case for the work aspects of the lives of most employees. As restrictions were relaxed, employers and employees were rightly reticent about rushing back to the office. But over the past year, there seems to have been — in many quarters — a complete absence of clear or firm decision making about the level of flexibility to be maintained going forward.

Many have attributed this to concerns about the so-called “Great Resignation” and the incredibly tight labour market. In other words, there was (and is) real concern that being less flexible (or being perceived as being less flexible) will compromise an organisation’s employee value proposition and make it more difficult to retain and attract skilled talent.

But, if that is the case, that means that the rationale for providing additional flexibility has fundamentally changed and is no longer linked to an effort to mitigate the spread of COVID‑19. Moreover, the emphasis on flexible working arrangements being temporary and subject to regular, ongoing review, also seems to have fallen away. This is likely because such emphasis is seen as inconsistent with the employee value proposition that many organisations are trying to foster.

But putting that speculation to one side, what is apparent is a general lack of intentionality by many employers about trying to identify and establish a level of flexibility that will work best for the organisation in 6, 9, 12, 18 or 24 months from now. Instead, there appears to be a chronic level of hesitation and anxiety about being too directive with workers and a willingness to tolerate levels of flexibility which may not best serve the needs of the organisation.

To be clear, some employers do not fall into this category. They have given careful consideration to where and how their employees work, and the pros and cons, and have determined that a significant degree of flexibility can, and will, be maintained going forward. Those employers should read no further. However, for employers who do not fall into that category, the current approach gives rise to some critical issues.

First, consistently putting these kinds of decisions into the “too hard” basket re-affirms a new reality. The longer that continues, and the more embedded the practices of the COVID-19 era become, the greater the level of resistance employers will face if they decide that they wish to make meaningful changes to their workplace flexibility model.

Second, there is a real risk that at some point (if that point has not already been reached), an employer and employee will be regarded as having varied, by their conduct, the provisions in the employment contract which govern where the employee is to perform their work. That risk is even greater if the employer has not regularly issued communications to employees making clear that the existing flexibility arrangements are temporary and subject to ongoing review. In the absence of such communications, and a prolonged history of employees working at home full time, or for much of the working week, it may be difficult for the employer to disprove that it and the employee have reached bilateral consensus about where (and when) they perform their work.

To mitigate these risks, employers should start taking steps now to identify the parameters within which flexible working will be permitted over the next six to 18 months (factoring in feedback received through consultation with the workforce), and proactively communicate with employees about the status of current flexibility arrangements and ongoing, upcoming or periodic review of those arrangements. 

Of course, being more decisive on flexibility could, if not managed well, increase the risk of staff deciding to leave the organisation. However, it could also present a real opportunity to re-engage with staff about the organisation’s EVP and how the approach to clear and decisive approach to flexibility moving forward will promote that EVP.

Regardless, if employers continue to prevaricate for much longer, they may come to realise, when the COVID‑induced fever dream passes, that while they were sleeping, their organisation changed in a fundamental and permanent way. In that scenario, trying to make any material change to their organisation’s “flexibility status quo” is likely to be a drawn out and painful experience.

Dominic Fleeton is a partner in the labour, employment and workplace safety team at law firm K&L Gates.