Flexible work may soon be a substantive right, barrister says

Ahead of the release of a parliamentary inquiry report into the National Employment Standards, employers should be prepared for the codification of flexible working hours, as opposed to being a mere request, one barrister has suggested.

The House of Representatives standing committee on employment, workplace relations, skills and training recently held an inquiry into the operation and adequacy of the National Employment Standards under the Fair Work Act. The inquiry was first announced late last year.

The parliamentary committee explored, among other things, solutions to ensure workers’ minimum entitlements remain clear and reflective of the evolving nature of work, with its final report, including findings and recommendations, expected to be handed down later in 2026.

In conversation with HR Leader, barrister Ian Neil SC said this marks the first time that a review of its kind has confronted what happens with artificial intelligence that inevitably eliminates jobs at scale.

The identification and regulation of working hours, he said, “will be the defining industrial issue in the rest of this decade”.

“Technology has stripped many occupations of their traditional temporal and physical dimensions, such that many workers can work remotely and at times that suit them. AI will intensify that change. The review is focusing on that issue, looking at flexible working arrangements, leave, and working time protections,” he said.

This latter point, Neil continued, is particularly interesting, as the review is considering whether the NES adequately addresses modern expectations about work/life balance, “including the operation of the maximum weekly hours provisions; employee availability outside ordinary working hours; the interaction between NES protections and the Right to Disconnect; and fatigue, burnout and psychosocial hazards”.

When asked what legal and workplace challenges employers could face if AI-driven job displacement accelerates, and whether existing employment laws are equipped to deal with those challenges, Neil said that AI will inevitably cause both the redistribution of existing jobs and job losses.

“Employers and employees should expect widespread redundancies and tumultuous restructures,” he said.

“Our existing employment laws can accommodate these challenges in principle, but the scale of workplace change is not yet fully understood. Our economy may suffer shocks and pressures for which we are unprepared.”

In Neil’s estimation, the committee’s final report and recommendations may well result in transformative policy changes, including that employers “could be looking at flexible working hours becoming a substantive right”, rather than just being a right to have a request considered, as well as potential changes to leave to accommodate employees with caring responsibilities.

Regardless of the review’s eventual findings, and in response to questioning about practical steps that employers can take at this juncture to introduce AI into their workplaces responsibly, support affected employees, and minimise legal and industrial relations risks, Neil said that many employees are rightly worried that AI will undermine the security of their employment.

“My recommendation is that employers frankly engage with their employees on that issue,” he said.

“Employees are unlikely to be fobbed off by assurances that AI will make their jobs easier, faster, and more productive.”

The inquiry heard from key industry stakeholders, including the ACTU, which slammed the NES as “antiquated, unfair, confusing, and unnecessary”; the Australian Industry Group, which proposed 35 “sensible, modest and targeted improvements”; and the Law Council of Australia, which argued that long-service leave entitlements need an overhaul.

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Jerome Doraisamy

Jerome Doraisamy is the managing editor of Momentum Media’s professional services suite, encompassing Lawyers Weekly, HR Leader, Accountants Daily, and Accounting Times. He has worked as a journalist and podcast host at Momentum Media since February 2018. Jerome is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, and a board director of the Minds Count Foundation.