Legal: The MatthewsFolbigg national workplace survey

How well prepared are employers for the National Employment Standards (NES)? The MatthewsFolbigg national workplace survey reveals where the areas of prime concern lie, writes Fay Calderone

Legal: The MatthewsFolbigg national workplace survey

From 1 January 2010, all employees in the federal system will have access to new entitlements such as compulsory severance pay, paid jury service leave, 24 months parental leave and a new right to request flexible work arrangements for parents of children under school age as part of the new National Employment Standards (NES).

With this date drawing near, employers are increasingly reporting unease about how these onerous employer obligations and costly employee entitlements will impact the day to day management of
their workplaces.

In response to this unease MatthewsFolbigg Lawyers conducted a national workplace survey to gauge the major concerns of business in implementing the NES.

Respondents from a broad range of industries, locations and organisation types ranging from small to medium sized enterprises to multinationals with surprising results. This article summarises the findings of the MatthewsFolbigg Report.


Employers most concerned about flexible work arrangements and more generous parental leave entitlement

Employers expressed the most concern about the two new provisions which relate to accommodating employees' family responsibilities. The responses indicate almost 40% of respondents were "extremely concerned" or "concerned" about the new entitlement to flexible work arrangements for employees with children under school age, and 52.3% of respondents were "extremely concerned" or "concerned" about the right to request increased parental leave.

This is in contrast to feelings about the significant new entitlement to compulsory severance pay for all employees in the federal system - an onerous new obligation. Only 9.2% of respondents were "extremely concerned" about the entitlement and 16.1% were "concerned".

'Flexible work arrangements' and 'parental leave' are hardly novel concepts for employers. 86.9% of respondents have flexible working arrangements or 'work-life balance strategies' in place including flexible start and finish times, part-time work, carers' leave, working offsite and job sharing. These flexible work arrangements appear to be heavily utilised by employees with 39.5% of respondents reporting a recent increase in requests for flexible work arrangements - the majority being part-time work requests for parents returning to work.


Challenges faced by employers implementing flexible work arrangements

So why are employers so concerned about the new right to request flexible work arrangements Employers face a range of challenges and business barriers in accommodating such requests such as impacts on productivity and workplace culture. Some employers also lack the technology and other infrastructure necessary to implement certain flexible work arrangements such as working offsite arrangements. In particular, flexible work policies pose distinct challenges for small employers with limited resources and flexibility in operations.

Impact on productivity: 52% of respondents believe 'flexible work policies' impact productivity. 45% of respondents are concerned about the productivity of employees accessing flexible work arrangements and 28.8% about the average hours worked by employees in general.
Impact on workplace culture: 46.3% of respondents identified the impact of flexible working arrangements on workplace culture as a major challenge.
Working offsite: Respondents face the most hurdles when implementing 'working offsite' arrangements. They identified lack of technology, trust and confidentiality concerns as the major challenges faced in implementing working offsite arrangements. 37.5% of respondents reported a need for improved technology to implement the arrangements, 35% of respondents identified trust issues and 32.5% raised "confidential concerns regarding work performed offsite" as significant concerns. Finally, 25% of respondents identified "the increased productivity required by onsite staff" as a major challenge. Respondents also identified practical challenges faced in adopting flexible work policies. 47.5% of respondents highlighted the need for implementation of flexible workplace policies and 23.8% raised the need for legal advice.
Employers reluctant to change: Employers seem reticent to fully embrace flexible work policies which require an adjustment to not only the way an organisation operates, but also how it thinks. Properly implementing flexible work practices involves challenging assumptions about how things must be done and coming up with new and innovative ways of utilising staff. Rigidity, inflexibility, fear of loss of 'control' and not knowing what to do or how to do it seem to be major psychological barriers for employers.

Change necessary to comply with NES

Despite these reservations, to comply with the NES employers must consider adopting flexible work practices that both accommodate the operational requirements of the employer and the personal needs of the employee.

Such an approach may have wider benefits as employers have acknowledged implementing flexible work practices may be one way to attract untapped labour sources such as stay at home parents and older workers to fill gaps in the labour pool. It is questionable whether these gaps will continue to exist in the near future, however, given labour market trends are changing due to the global economic crisis.

What should employers do now?

From 1 January 2010, it is recommended employers implement management guidelines and procedures to comply with the NES and standardise the process involved when employees make requests for flexible work arrangements. Time frames should be clearly identified in such procedures to ensure compliance with the NES requirement to respond within 21 days and procedural training for managers should be provided. The good news for employers is with such procedures and training compliance should not be mutually exclusive with efficient management as the NES requires "consideration" of requests rather than guaranteed "accommodation" of them.

For access to the full report please go to

About the author

Fay Calderone is Senior Associate with MatthewsFolbigg Lawyers. For more information call: (02) 9806 7412 or e-mail:

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