What does workplace flexibility and the right to disconnect mean for APS?

The law has responded to these countervailing trends in several ways. Workplace flexibility obligations on employers have been strengthened in the Fair Work Act, and more and more enterprise agreements contain clauses around flexibility. On the other hand, to much fanfare (and criticism within some sectors), the Albanese government has enacted a "right to disconnect" for workers. All of which prompts the obvious question for these pages - what does it all mean for the APS?

For some time, the Fair Work Act has provided a framework for the making of flexible working requests, which employers were required to consider, and could only refuse on reasonable business grounds. However, the 'right' only applied to certain employees - those with parenting or caring responsibilities, those with a disability, those over 55 and so on - and there was no dispute resolution mechanism if an employer refused a request.

That changed last year under the government's Secure Jobs, Better Pay legislation, which expanded the categories of employees who can make a flexible working request and giving the Fair Work Commission jurisdiction to determine disputes over refusals.

While this jurisdiction is available to public servants, APS workers are now in an even better position on flexible working arrangements thanks to recent common conditions negotiated during the APS-wide bargaining process.

The common clause, which will be progressively updated as agencies adopt new enterprise agreements, provides that all public servants can make flexible working requests, that no default caps are imposed on working from home days, and that there are narrow grounds for refusal (which the union describes as "a bias towards yes - agencies are required to lean towards approving requests"). The common clause also provides that agencies may provide equipment, or reimburse costs associated with establishing a working from home arrangement.

This leaves public servants in a significantly better position than most private sector employees. While not all requests will be approved, public servants have negotiated a strong framework for considering requests - whether they be to work from home, or to work different hours, and so on.

These changes will hopefully, in the long term, be good for public servants and good for the APS. As is recognised in the common clause, the flexible working framework is established to recognise the importance of work-life balance in the APS, and that "access to flexible work can support strategies to improve diversity in employment and leadership in the APS".

All public servants will benefit from the new "right to disconnect" added to the Fair Work Act, which will take effect mid-year. The new provision will permit employees to refuse to engage with employers or third parties out of hours - say, declining to take a phone call, or to read or respond to an email - unless that refusal is unreasonable.

Because the right to disconnect will be a 'workplace right' within the meaning of the Act, employees will be protected from adverse action for exercising the right. If a public servant were to face a performance review, for example, or an allegation their conduct was contrary to the APS code of conduct arising from the exercise of the right, they could bring general protections proceedings - to the Fair Work Commission and ultimately the courts.

The commission has also been granted jurisdiction to determine disputes relating to a request, and what constitutes a reasonable refusal of a request. It will publish guidelines soon to complement the statutory scheme, which outlines the relevant factors as including: (i) the reason for the contact; (ii) how the contact is made and the level of disruption caused to the employee; (iii) the extent to which the employee is compensated, for example to be on-call, or able to claim over-time; (iv) the seniority and role of the employee; and (v) the employee's personal circumstances, including family circumstances.

Of course, few public servants would want to take their agency to the commission about late-night emails. But the right to disconnect will likely contribute to some cultural change, or at least a culture of greater wariness about expecting employees to be available at all times. It will only take a few high-profile cases where overly demanding supervisors are rebuked by the commission until workplaces become wary of the right being exercised, and adapt accordingly.

That said, there are limits to the flexibility employers, and the law, will permit employees, particularly public servants. A recent Fair Work Commission case is salutary. A research scientist at the Bureau of Meteorology took a period of leave for an international trip, but after his anticipated return failed to attend the office for work. The employee asserted that he was back in the country, and working remotely, but a supervisor grew suspicious that he "was still overseas but representing himself to be working in Australia and was unresponsive during work hours."

The situation was compounded because of the common government policy against accessing work IT systems from outside Australia, for data protection reasons. After the employee again went overseas for personal reasons, and again failed to return to work at the office on time, he was dismissed. His unfair dismissal application failed.

All of which is to say - not unreasonably - there is a difference between working from home and working from a resort in Fiji. An employer greenlighting the former is not, by extension, automatically approving the latter. And public servants need to be particularly wary of working whilst on a foreign holiday, given the strict IT protocols of most government departments.

The future evolution of this area of law is unclear. No doubt the right to disconnect will take time to bed down, and there will, in time, be useful guidance from the Fair Work Commission as to its implementation.

Employment law reflects and refracts societal evolution; these legal changes will influence behaviour and, in time, be influenced by further societal changes. In other words, watch this space.