Understanding Your Rights When It Comes To Flexism

Hello, and thank you for joining us today. This ‘Making Flexible Working “Work” Webinar’ is proudly brought to you by the Flex-Agility Group and Resolution 1-2-3. My name is Vanessa Vanderhook, proud founder of Flexible Working Day, and it’s my absolute pleasure to introduce you today to Carly Stebbing, who’s a passionate advocate for individuals like you and I to understand our workplace rights. Hello, Carly. Thank you for joining us.

Hello, thanks for having me.

Now, Carly, today we’re going to talk about a term that I didn’t coin. I lady in the US did come up with it, but there was no definition around what Flexism meant, so last year I thought, “You know what? I’m gonna just go out there and create a definition,” which quite a bit of take up with Flexible Working Day last year.

Yep.

And what I’ve defined it as: Prejudice or discrimination on the basis of a person’s working status [inaudible 00:01:02]. And Carly, when we spoke, I think it was late last year or mid-last year, you said, “I love it.” It’s a great term. It summarizes a lot of what you see and hear.

Yeah. I think it’s great too because it takes the sex aspect out of it a little bit, so, you know, often discrimination on the basis of exercising flexible working arrangements is seen as a woman’s right, and in relation to a woman looking after her children, and I think that this term is great because it removes the sex aspect out of it, and extends it just to anyone that’s exercising that right to work flexibly.

Absolutely. And look, as you know, we’re trending hopefully this Flexible Working Day the hashtag Gender Flexer, and it is about supporting flexible work for anybody for any reason, noting that not every type of flexible work suits everybody. And so today, you’re going to share with us a little bit of information about what’s our rights, and also from an employers perspective about what’s your obligations. So thank you. I’ll hand it over to you.

Okay, great. So I guess getting straight down to the nitty-gritty, the term Flexism that we’re talking about here is prejudicial discrimination on the basis of a person’s working status. Now, whether or not that’s actually unlawful or not will depend on a couple of things, but it can be unlawful in a lot of circumstances. If and employer takes adverse action against you treats you differently or prejudices you and your employment because you’ve exercised the right to work flexibly, or because you need those flexibilities. And when it is unlawful is when it is related to your sex, when it is related to your status as a carer, when it is related to your age or a disability, and when it is related to the exercise of a workplace right relevantly, I guess here, the right to request a flexible work arrangement under the Fair Work Act.

So perhaps if we just get straight into when do you have that right. So there Fair Work Act is the sort of un-depending safety net for all employees in a Australia, in the federal system. So that’s most employees, anybody whose not employed by the public sector. So not employed by like, council or … You know. [inaudible 00:03:43] People that are employed by companies in Australia are all protected by the Fair Work Act. And the Fair Work Act contains 10 National Employment Standards, that’s what the NES means, and those are sort of your 10 most basic workplace rights, and they include things like the maximum hours of work, your right to annual leave, your right to long service leave, public holidays, parental leave. And the National Employment Standards includes the right to request flexible working arrangements for certain classes of people.

So if you’re the parent of a child who is of school age or younger, or you have responsibility for a child in that age bracket, then you have a right to request flexible working arrangements. If you are a carer, if you have a disability, if you are 55 years or older and potentially looking like, for example, transitioning into retirement, you have rights to request flexible working arrangements under the National Employment Standards. If you’re experiencing violence from a member of your family, sometimes people experiencing domestic violence, or if you need to provide care or support to a member of your family that is experiencing domestic violence. In all of those circumstances, and assuming that you have 12 months of continuous service with you employer, and that includes casuals who have had regular and ongoing employment for that period and have an expectation of continuing employment. All of those classes of people have the right to make a request for flexible working arrangements under the Fair Work Act.

And on the …

We go now …

… The working day, we do have a flexibility kit that you can download, so if you want …

Yes.

To negotiate … What we’re putting there are some tips on how to present yourself in the best way so you’re coming at it from your employers perspective, as well as your own personal perspective. And I think the other thing is if you’re a manager, and you’ve got people coming, asking you for flexibility, you know, the Fair Work Ombudsman, the Fair Work Act, like you said Carly, is a one-stop-shop. They do have resources. We also do have those sources on the website. But it is important to understand as a manager, and a leader, what your obligations are.

Absolutely. And I think if we go to the next slide, Vanessa, I’ve got the steps and I’ve … You do have these steps in your Flexibility Kit, available on your website as well. So under the National Employment Standards, if you wish to exercise the right to flexible work, then you need to make that request in writing. You need to detail the change that you’re seeking to your working arrangements. And you need to detail the reasons for that change. So citing on of the grounds that was on the previous slide, for example.

So when I say that, I think if you can come at it by saying, “What’s my employer likely to say in response to this request? What are their objections most likely going to be?” And that’s not a hard sort of devil’s advocate game to play with yourself, I don’t think. I think you can look at it, for example, if you were going to go part time. Like a standard employer response to something like that is that this role can only be performed full time. I think you then sort of need to ask the question, “Why would they be saying that? Is it about client accessibility? Is it about serviceability of the clients?” And propose a plan for how you could address all of those things. How can you do your job flexibly? If you can approach it in that way, rather than just, “I’ve got this right, and I’m gonna demand the exercise of this right,” and sort of push it through in that way. I mean, that’s the way that’s most likely to be received with objections by the employer.

If you can present a case where you say, “This is what I’d like. I’ve thought it through. This is how I can do my job on this basis,” you know? If, for example, you were proposing a job share arrangement, it would be amazing if you could go to them with a plan where you’ve actually thought through who might be a good job share partner for you, and put a proposal of that regard. But the best advice I can give there is remove their objections before they can even make them, because if you do that, you put the employer in a circumstance where they really do have to … You know, they’re not just looking at something going, “Oh, this is just another person asking for flexible work that’s going to inconvenience me.” You take away those inconveniences as best as possible, your really giving yourself I think the best prospects of having the arrangement approved.

And I think you say this too in the kit, but also making a not in there that you’re not just asking them to respond immediately to your proposal, and its face. I think in your kit you talk about, ask them for a meeting, ask them for a face to face. The employer must respond to the application that you’ve put in writing within 21 days. So I think, ideally, you’d like to give them about 7 days to think about it, and schedule the meeting in between the one and two week mark, so that you clan flush out any of those objections that they might have, and try to overcome them. And you might get your … My suggestion to an employee would be put in your best case scenario that you’d like. That might be where you end up, but if you can reach a compromised arrangement, because you’ve been prepared to talk about it and meet with the employer, and work through any objections they might have, then again, that’s gonna give you your best prospects for getting the request approved.

And the fact might be … Flexibility is so different to everybody [inaudible 00:10:37].

Yeah, absolutely.

Fair Work Act classifies it into three categories, and I had a fourth one. And the three categories are the hours of work. So are you working the full hours, or a reduced hours, like part time? Like you said, the opportunity of job share and other types of arrangements to meet the hours. The second one is the location of work. So are you down to work at your desk or the office of be a mining site, or can you work from home or from another location. The third one is the patent of work, which is, you know, potentially your [inaudible 00:11:21] clients, and the like. And the fourth is what I see around leave options, like [inaudible 00:11:28]. Parental leave, and the like.

And I think, you know, if we start to break it down, the obstacles are different for each of them. You know, the first one, around hours of work, of course you need to deliver what you have to deliver in the business around what the mission is. So all of us know if you’re a reduced capacity, it’s about like you said. What could potential options be? We do have a great Webinar with Rebecca Coolie and Nicole Kidman, to share their job share story. But I do recommend if you’re interested in job share, look at that. Because it is quite different to the location of work, and your patent of work.

Location of work, it requires IT and also it’s about [inaudible 00:12:16]. The patent of work, it may just require more scheduling and thinking about how we’re going to fill, like you said, potential customer demand or whatever your business is, and they’re all different. But it’s actually … I find that people have far greater success when they actually sit down and plan for it. It’s like anything. Like a job interview: you plan for it. You think about it.

Absolutely. Absolutely. And I think too, this … When we talk about the hours of work, I think it’s about accepting that, for example, in my personal circumstance, working part time doesn’t mean working three days a week, between nine to five. That’s not what that means to me. Flexibility means to me is probably different … Some people, if they want to work flexibly, to them it means working three days nine to five. That’s what works for them. I think when you look at the fact that we’re moving towards task based employment, and that there’s so many studies out there demonstrating how much more effective and productive task based employment is, again, you start removing some of those obstacles to hours.

So, for example, I know a lot of lawyers work this way, a lot of people work this way, that as long … You’ve got certain work that you need to get done, and there’s a deadline within which it needs to be done. And if that means, if you work most productively, for example, around your children’ sleep times, et cetera, and that means that you might be doing something at 6 AM in the morning, and you might do a few things during school drop-offs, but then you’re back online over the lunch period. And then you might be picking people up and putting them to dinner time, and putting them to bed, and then you might get back on in the evening. I mean, that’s to everyone’s ideal flexible work arrangement. But in some circumstances, where task based employment really works, that can work really well, and for me, that’s what works for me. To be able to do the hours when I … And complying with the deadlines that you have, but that’s …

If you’re in the type of employment that’s conducive to the arguments around being task based, I think that’s really critical too, cause you can take away those objections around, “Oh, it need to be office hours between nine to five PM.” And it’s like, well is that actually what’s important to the client, or is what’s important to the client that they get access when they need it, and they get responses to their emails in a timely fashion, et cetera.

But again, that’s about planning. That’s looking at what’s your job, and how can your job be performed best flexibly, for you as well.

And I think you’ve outlined it so well there. The Webinar that I’m delivering is about the essential brilliance with flexible work, and we talked to all the different types, you mention there task based work. We talked through the different types of work tog et you in the mindset as a manager or individual about, “Okay, this is what looks different to me.” So if you’re interested in that, you can access that Webinar as well.

And that leads on, I suppose, to the refusals.

Yes. So, [crosstalk 00:15:36] the employer can refuse a request on reasonable business grounds, and they give some examples of that in the Fair Work Act. You know, effectively, no one will be shocked by what they relate to. It’s things like coverage, and the inconvenience to the employer, things like that. That’s why when you need to, when you’re putting a proposal forward, that’s why I’m saying you need to really address it in terms of how do you really remove those objections, because the more of them that you can remove, the harder it is for an employer to make out a case of reasonable business grounds upon which to reject.

And I’d have to say too, that in my last couple years of private practice, acting for employers and some of the cases that were coming out of the Fair Work Commission at the time, one that I can think of in particular, it really basically was demonstration that it is increasingly difficult for a business to just purely refuse their request on the basis of reasonable business grounds. They really need to have trialed the arrangement, at the very least.

And so I would probably say to the person making the request, that if you really get to that end point, like you’ve tried to remove all of the obstacles, you’ve met with them, you’ve been consulted of, you’ve been flexible and prepared to move on your initial position, and you’re still at a point where you’re working with an employer that’s saying, “Look, no. It’s not gonna work for us. We’re not prepared to do it.” Then it’s very useful, I think, to throw in the prospect of what if we did it, just on a trial basis. This doesn’t have to be, necessarily …

You know, think of it, for example, when you started employment you’ve got a probation period, and generally that’s six months now. You might propose like, “Why don’t we do this on a trial basis for six months and see how it goes?” And touch base and have one on ones during that period, and again, take that as an opportunity to try to remove those obstacles to the arrangement continuing.

I think that’s a great plan, Carly, and it’s something that I recommend to clients all the time. And it works. Trial it for three months, and then it usually … Cause 90 days is a good time frame to give it a good test. And then, at that point in time, after the 90 days, it’s to extend the trial. Do we approve, or do we make another decision because of whatever reasons come to play?

And equally, too, a lot can change for the individual during that time. Sometimes what you think is going to work for you on a flexible basis doesn’t when you put it into practice, and you need to tweak it a little bit. So a trial arrangement cuts both ways.

So we’re talking here a lot about what people call ‘formal flexibility’, or ‘formal flexible working arrangements’. And the other side of that is informal, where people just have a discussion with their manager and say, you know, “I’ll be coming in at nine o’clock, nine-thirty or ten o’clock we’re doing a split shift or working from home tomorrow … What’s your experience and background in the difference between formal and informal? Cause I find a lot of people often get confused about the line. It’s kind of like a line in the sand, isn’t it?

Yeah. There’s … I mean, that’s probably … The formal request is really just where you want to …
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… be just where you want to trigger a certain set of actions. So if you, for example … sorry to go back to probably a bit of a stereotype example, someone requesting flexible work. But the reality is, not most people presently are requesting flexible work. There’s probably two categories that I mainly deal with. Women that are returning from parental leave, because unfortunately it is mainly still women that are exercising their right to parental leave. And also people over the age of 55 that are looking to transition to retirement. People in those circumstances probably want more formality around it. They don’t necessarily … it’s not really about, do you mind if I just come in an hour late? They actually are looking at reduced days and hours of the week. And in those circumstances you want a formal response, because you need to put other caring arrangements in place, for example.

That’s probably when you want to reduce it to writing, and exercise the right under the Act. I think the other benefit too is … informal arrangements are brilliant and can work for periods of time. When they can become problematic for an individual is where you might, for example, have a change of management. And then your manager comes in, and then they’re not so accommodating. And I’ve heard the story before where someone will say to me that, Carly, I’ve been doing it for years, it’s just never been reduced to writing. But it’s harder to enforce then, the right. So I guess you just have to take that into account. I mean, my preference obviously as a lawyer, regardless which side I’m acting on, would be, whatever the arrangement, it’s best that it’s reduced to writing.

When I say, reduced to writing, it doesn’t mean a formal employment contract. It can be an email exchange, for example, where the employee … you might have had a conversation, and if the manager doesn’t follow up in writing, the employee can follow up in writing. And say, we met on so and such a date, and I just wanted to confirm that this is what we agreed going forward, for example. That can be really useful.

Right. I like that [idea 00:21:16].

Maybe if we move on to the next slide. This is a bit exciting. The Fair Work Commission … I think I’ve mentioned just before about some cases coming out of the commission in my last couple of years in private practice. That was demonstrating that the commission was actually probably being more progressive than even the courts necessarily, in enforcing people’s rights to flexible work arrangements. So what’s happened at the moment is basically, the unions, the ACTU, have gone to the commission and said, look, we need to improve the rights to request flexible working arrangements. We need to broaden the people that are entitled to make the request. And we need to give it more teeth. So those rights that I referred to before under the National Standards, unfortunately are often referred to as toothless tiger provisions. Because whereas every other protection under the National Employment Standards of the 10 protections that exist are civil penalty provisions, as we call them … so it means that if an employer breaches them, you can actually take them to court, and the court can impose a civil penalty against the employer for the breach.

About $54 thousand, I think is the current cap. Unfortunately the right to request flexible working arrangements are carved out of that. So you’ve got the right to make the request, the employer can decline the request. And then there’s not a great deal … it’s a bit of a gray area, what do you do then if the employer declines it? How do you dispute it? Is it a breach of that provision? And even if it’s a breach, it’s not a breach that you could seek an award or a penalty against. So what the unions are saying is, they can’t necessarily control what’s in the legislation, but they can propose alternatives to go into modern awards. So if you’re an award-covered employee, or an enterprise agreement-covered employee … so when you’ve got a collective bargaining arrangement in place, if this term will go into modern awards, it will probably find its way to enterprise agreements too.

But the Fair Work Commission have basically said, yes, we do think that this is the way that the world is moving, that the world is moving towards flexibility. It needs to be broader than it is at the moment under the legislation. And what they’re proposing to do is to insert a model term into all modern awards, that would reduce the eligibility period from 12 months to 6 months. So you only have to have been employed by the employer for 6 months before you can make the request. To demand … we talked before about, when you put in the request in writing, the employer has to respond to you, but you should take proactive steps to meet with them, et cetera. And we recommend those things, because at the moment the employer doesn’t have to meet with you. You can put in the request, and the employer can just decline the request without meeting with you.

So this model term would require there will be consultation. Particularly if the employer was looking to declining the request, it requires the employer to meet with you and discuss with you what the obstacles are, and what the issues are. The Fair Work Commission and the courts have recently made a number of decisions where they say, consultation has to be something more than a mere formality. It’s not just a box-ticking episode, where the employer can say, oh, we had a meeting with you, and now we’ve decided to just go ahead and do what we want to do anyway. They have to be out and demonstrate, they’re genuinely taking into account what you’ve said. That’s really positive. They’re also going to demand that if the employer is still going to decline the request, they have to put out a comprehensive explanation for the refusal into the refusal letter to the employee.

Again, that’s really useful. Because forcing the employer to say something more than, ‘we’re refusing on the basis of reasonable business grounds,’ puts the employer in a situation where they really need to give it some more consideration around how they could accommodate this. And it’s also going to confirm the fact that the Fair Work Commission has some capacity to deal with disputes around these provisions. So if an employee has made the request, and it’s been declined, for example, the Fair Work Commission will have some capacity to have the parties come to it, in the hope that they will be able to help the parties reach an agreement about the arrangement. So I think that’s really positive, and really demonstrative of the fact that if the Fair Work Commission is alive to the fact that this is the way work is moving, then I think in time the legislation will catch up as well.

Absolutely. Like you said it’s, if people talk about the future of work today, and that flexibility is part of the future of work for many organizations … and even, like you said, the ACTU is saying, no, it’s not. It’s about the now of work, we need … Our life is so critically hectic, particularly with dual families working, dual incomes. A lot of people … we are against stereotyping, but they are largely [inaudible 00:26:33] around women returning to work. A lot of people don’t have supportive family anymore. [crosstalk 00:26:41] family. So it’s even more challenging to raise … for anyone who is listening who’s got little ones, without that support and that flexibility. But this sounds like it’s really going in the right direction.

I do hope that as part of this they do look at expanding, like you said, the categories, and making it available for anyone. Currently it says, if you have a disability, you’re able to access it under the Fair Work Act. But in the fine print it actually says you have to be on a disability plan, which is a whole nother process, so that [counts 00:27:19] out a lot of people. I do like how they’ve reduced it potentially to six months, because like you said, that’s often the probation period for people. So you finish your probation, and then you’re able to negotiate, which would be [crosstalk 00:27:33] fantastic.

Yeah. This is in consultation mode at the moment. The Fair Work Commission have put it out there, and they’ve asked the employer bodies and the employee bodies to make submissions. So we’ll see where it ends up. But I think it’s very positive that the commission are identifying this as something that they need to do, and improve upon. We move on now to, how do you enforce your right? I guess, going back to, this is all about tackling flexism. So if you do experience flexism at work, so if you do experience discrimination or prejudice on the basis of working flexibly, what rights do you have at law? I do a lot of work with clients around this space. It can be tricky, as I said. Because, for example, the formal rights to request are not civil penalty provision. So the employer can decline them, and some people kind of believe that’s where it all starts and ends. But that’s not necessarily the case.

If you are an award-covered employee or an enterprise agreement-covered employee … probably most employees would know that. As a general rule, if you work in clerical or administrative work, or really in an enterprise and you’re performing work below management level, then there’s a pretty good chance that you’re covered by a modern award. And if you are covered by a modern award or an enterprise agreement, then there will be a dispute resolution procedure in that instrument. And that dispute resolution procedure would generally enable you to take a dispute to the commission, if you haven’t been able to resolve it at the workplace level. And it generally includes a dispute around National Employment Standards. So a point of call is, if you’re experiencing those issues at work, you can have a look at your relevant industrial instrument, and see whether you’ve got a right to take it through a dispute resolution procedure.

Normally that procedure is, you address it with your manager in the first instance. If that doesn’t resolve it, you go to the next level internally. That might be to the HR department. If that still doesn’t resolve the matter, then the parties would normally have the right to refer the matter to the Fair Work Commission for conciliation. So that’s when a member of the Fair Work Commission would actually sit down, and try to help the parties reach an agreement. I think I referred to it before. The other way you can do it, if you’ve actually got a workplace right to make the request for flexible working arrangements … so those categories of persons that we spoke about before, and you exercise that workplace right. And you feel like you’re being discriminated against, or your employer is taking adverse action against you because of having exercised that workplace right, that’s a breach of what’s called the general protections in the Fair Work Act.

So basically the Fair Work Act says, there’s a whole range of things that the employee is entitled to, and there’s a whole range of workplace rights that an employee is entitled to exercise. And one of those rights is the right to make a request for flexible work arrangements. And what the general protections provisions say is that, if an employer takes adverse action against you because of you exercising that workplace right, that’s unlawful. And that is a civil penalty provision. So that’s an interesting way to try to deal with a circumstance where you’ve made a request, and the employer is discriminating against you on the basis of having made that request. There is a case that I’m aware of, where that has run on the basis of, a woman was returning from parental leave, made the request of part-time work, went through a long process in trying to achieve that arrangement with her employer, including … I think, from memory, she was covered by an enterprise agreement, and had a dispute resolution procedure in it.

She went through that process. Ultimately, I don’t think … she didn’t have any family support. She genuinely needed the arrangements. And basically she got to a point where she felt that she was forced to resign, as a consequence of the employer not accommodating the flexible work arrangements. And she brought that dispute before the commission under the general protections provisions. So basically she said, I’ve been dismissed, forced to resign from my employment, because I exercised this right to make a request for flexible work. And in that case the commission did look at it, and say, look, Australian employers really need to start getting serious about the fact that people have these rights to take parental leave. They have these rights to request flexible working arrangements at work, and you need to take them seriously.

So that’s another way that it can be addressed. And general protections interestingly can be brought before the commission, both during your employment, and if your employment has come to an end. So that’s really powerful, because a lot of people do feel like they’ve made the request, it’s declined, now they feel like they’re being forced to resign. And they don’t really know what to do, other than resign. As a general rule, you should try everything you can before resigning. Because once you resign, the legal claims that you can bring are limited, and they’re problematic because of the fact that you’ve resigned from your employment. So the general protections provisions that enable you to bring a dispute before the commission whilst you remain in your employment are really useful. Because at that point, just before you resign, you can look at, hang on a minute, is an alternative here to bring this matter before the commission for conciliation, to try to resolve it without it resulting in you having to resign?

It’s confronting, isn’t it?

It is. Yeah.

And your business is amazing, and you’re gonna share a little bit about what you do, and how you consult people. I think about a gentleman who I spoke with the other day. Look, a lot of men are feeling like they’re being discriminated against. I know you hear a lot of women, but I’m hearing through the circles that I’m with, that a lot of men are saying, I’m really wanting it. I’m really trying. Even an hour a week finishing early on a Friday, it got completely rejected.

I think, can I just say, Vanessa, really quickly? I can emphasize, because my husband feels that way. I think that is when it’s really important to exercise the formal right. Here we talked before about the informal rights. A lot of men might try to have that conversation and say, can I …? And they try to take the quietly, quietly, non-confrontational approach to it. They feel like they’re getting pushed back, so they stop. And my view is, that’s where you make it a formal request then. That’s when you force the hand, and try to do it that way.

You’re at that point, like that lady you spoke about, and she needs to resign. And you’re saying, well, take action there while you’re still employed. My goodness. How do you …? Do you do it in secret, and then they get a letter saying, rock up to court? Practically, how does it …? You’re facing your team every day.

Yes. It’s very uncomfortable. Look, for a lot of people, they feel like the relationship is completely broken down.

So how [crosstalk 00:35:30] the process that you go through?

So if I get a client in that circumstance, if I ever get a client come to me and say they’re considering resigning, my first advice is almost always, please don’t. Let’s look at what we can do, whilst just still employed. And that’s purely because you’re then on the back foot. If you resign, and you decide to take action after you’ve resigned, you have to demonstrate to the commission or the court that you were forced to resign from your employment. And often in looking at whether or not you were forced to resign from your employment, the court or the commission will look at things, was there any alternative available to you? And if an alternative is, for example, commencing a dispute under an award or enterprise agreement, or bring in a general protections dispute before the commission, then they may not be satisfied that you were forced to resign, because you didn’t take those other options that were available to you.

So that’s part of it. That’s why I always say, let’s stop and think about, is that really the only alterative now? The way I would normally help someone through that situation is, I would have a look at, have they made the formal request yet? And if they haven’t, do we do that, for example? And it very much depends on the client as well. Sometimes the way I can assist is to just explain their rights to them, and help them … I might shadow-write an email or a letter to their manager that potentially better articulates what they’ve been asking for, and puts the legals around it. For example, in relation to the male client that you were talking about that had been trying to get an hour off work each time, that might be where I say, hang on, have you made a formal request yet?

And if not, let’s formalize it. Let’s put it to them. Let’s say, this is why we need it. This is the basis upon which we’re making this request. That’s a step that you can take. You can get some assistance that isn’t expensive and isn’t hugely confrontational, because it can still come from you in the first place. And that can often resolve it. I’ve had testimonials on the website from women that I’ve helped in circumstances like that, where I don’t race off to the commission and make an application. You really only do that as the last possible resort. Where instead what I’ll do is, I’ll say, let’s talk about everything that’s happened. Let’s look at the chronology, and let’s prepare something to your employer just saying, basically this isn’t right. And this is why this is not right. And this is what I need, in order for us to keep the relationship on foot basically.
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… In order for us to keep the relationship on foot, basically. And often when you sort of put it in that framework, number one, importantly, the employer then knows that you’ve gotten some legal advice, even if it doesn’t come straight from a lawyer, which helps. But it also … Yeah, they can rain into it. The other thing that it does is that that in and of itself is a workplace right. So one of your workplace rights as an employee is to make a complaint or an inquiry in relation to your employment. So if you might not otherwise have an action, if you write to your employer, and you just say, “Look, this is what I’ve been experiencing, and this is really unacceptable to me on this basis, and this is the accommodations I’m looking for that I think should be facilitated,” and they then take adverse action against you because of having sent that, then that in and of itself is actionable.

But really what I would be looking to do is let’s see what we can do internally. If there are still some steps that can be taken internally to try to resolve this matter. And if not … And normally, if your relationship is still on foot, you’ll really want to say to them, “You’re putting me in a position where I feel I’ve got no choice other than commencing a dispute before the commission, and/or resigning. Like, you need to know that’s the position I’m now being put in.”

And put that in writing.

Yeah. Generally, yes. You would. You’d write … You say to them, “Look. These are the complaints that I have. These are the rights that I believe that I have that I don’t think you’re accommodating, and I’d like you to take X, Y, and Z in action, or else I’m going to take this matter before the commission.

It’s neat, isn’t it, Carly? Like I hear a lot of people saying, “Look, if you don’t get it … The shoe doesn’t fit, find another shoe.”

Aww, I hate that advice though. It’s not fair. [crosstalk 00:39:59]

… Need to work, like we need the security of a job. And I …

And it’s not that easy. I mean, it’s hard. [crosstalk 00:40:08]

Like, I know what it’s like. I’ve managed teams. Big teams. I’ve managed 60 of us … Just Australia displaced workforce. And it is challenging.

Yeah. Yeah.

And I do [inaudible 00:40:20] that manages in doing this. But I must say, I don’t often hear it getting to this point.

No, and I mean, I guess probably that’s what I’m quite … Pardon?

You’re at the other end, cause you specialize in helping people, but I suppose … [crosstalk 00:40:39]

Yeah, but …

If you have this discussion up front, and really try to work it through. So if you’re a manager it’s empathizing, and saying, “Alright, you know, this person … If they’re contributing to the mission of the business and delivering, and they’re asking for instance, that gentleman, one hour a week,” which was then in turn helping his wife return to work … By saying no … And he did put in a formal request actually, you’d be shocked.

Good on him.

Yeah, but it was still rejected on reasonable business demands. One hour a week. And when he told me the story and the situation, we … Yeah. It doesn’t seem reasonable.

And probably also, to him, might smack of sexism a little bit to him. Cause he’s probably thinking, “You know what? If a woman made this request, it probably would be accommodated.”

He thinks it’s sexism. So I have no doubt he’ll be in touch, I’ve given him your details.

Yeah.

And that’s …

I think …

It is what many of us are facing. So …

Yeah. And I guess what I’m [crosstalk 00:41:43] … Yeah. And I’m very passionate about the fact that you’ve got rights. Understand them. Understand what your rights are, and take action, because that is the only way things are going to change. If you just resign quietly, don’t really tell anyone why you’ve resigned … Whether your employer does or doesn’t do an exit interview, but a lot of people won’t even be honest in that because they’re concerned about rocking the boat and getting another job. But realistically, I think it’s easier to negotiate flexible work when you’re in the job, rather than when you’re trying to then join the largest job market that are all searching for flexible work. So it’s much better to try to achieve it where you are, I think.

And I think going to that, what you were talking about before, with the manager and the way that a manager should think about it … I guess my best advice would be, I mean … I know how employers think because I’ve worked with them for a really long time, and unfortunately a lot of employers’ default position is just no. They’ve got a lot of things on their plate. Like you said before, they might have big teams. And it’s hard. Its hard accommodating all these different types of arrangements, and a default position is often just no. You know? And then you have to convince me why.

And I think if we can impress upon managers and employers, instead of defaulting to ‘no’, default to ‘Why not?’ Why not? Why can’t this be accommodated? And if you challenge yourself with that question, as a manager, I think you’re probably going to find that it can be, on some basis. Not necessarily the first basis upon which the employee has made the request, but maybe somewhere in between it can be accommodated.

And that’s what we’re seeing from modern flexible workplaces, aren’t we? Around this default is yes. [crosstalk 00:43:36]

Yes.

It’s not why, not yes is best. There’s all these amazing tag lines out there that organize that’ve branded flexibility. I’m coming from that basis of, “Let’s have a discussion.” I’m noting that not every type of flexibility works, but [inaudible 00:43:51]. So not everyone can work from home. Not everyone can [crosstalk 00:43:55].

No. Yep.

Not everyone can work reduced hours.

Right.

And so …

And part of that, again … [crosstalk 00:44:03] No. No. And you know your job better than anybody else, so you know what those objections are going to be. If you think about it, you will know why do you think it … Well, unfortunately a lot of people think, “I know my employer’s gonna say no, so why am I going to ask for it?” But you, again, I guess you can pose this question on either side of the fence. But why? Why are they going to say no? And how do you overcome that?

And in the flex kit …

But I’m … Yeah.

… Is a detailed checklist, so it helps you go through and work through, “What’s the impact on the team? What’s the impact on your role? What’s the impact on the clients?” There’s all sorts of different angles to think about, and it’s really just a prompt. Not every question will relate to your …

Work. Yeah.

But it’s just a bit of a prompt to help you work through, put your best foot forward, if I can put it like that.

Yeah. I guess, too, just getting back to this sort of enforcing mechanism. Like I said, the best things I think you can do are to work through it in a consultative way during your employment. But if it does get to the point where you’ve exhausted everything and you are genuinely being forced to resign, there’s no options left to you, then the protections that you gave potential, if you are a ward of agreement covered, and/or you earn under the high income threshold, which I think is presently $142,000. That’s probably about to go up as of the first of July. Then you are probably protected from unfair dismissal. And so if you’ve been forced to resign, the cause of conduct by your employer, then you can bring that action.

Or, if you earn over that threshold, or the dismissal is related to the exercise of the workplace right, then you can bring the general protections dispute after your employment has ended. Really, really importantly, you’ve only got 21 days from the time that your employment ends to bring that action.

And after that, as a general rule, your banned from ever bringing the action, which is really hard. They put that time frame on it probably cleverly, because it means a lot of people get shut out of bring the claim, because bringing your employment to an end is such an emotional thing, and a lot of people are sort of angry and upset, and their first instinct is just to go into, “I’ve got to find something else,” mode, and they’re not necessarily thinking about enforcing their rights, or bringing it a claim. I just always sort of say to people, “Look. This is something that you need to do in the background, and with a good employment lawyer, it doesn’t have to be a stressful process.” You can kind of hand it over to them to run with, and become your advocate. And it’s important, because there’s few things that taking that action can do.

Most, I think, three out of four, high percentage of matters, resolve at the very first and formal stage, so the conciliation stage. Most conciliations post-dismissal are conducted over the telephone. So it doesn’t have to be that confrontation of seeing the employer again in person. And you know, the important thing is, really, it’s a stop gap. It’s trying to get you some income, whilst you look for something else.

So I think that’s really important. They’re not expensive actions to run, but it’s very important to understand, if it’s gotten to that point, and you’ve been dismissed because of exercising your work place right, or you’ve resigned after you’ve tried everything else, then you’ve got those actions, and you’ve only got 21 days from the date of the dismissal or resignation.

Carly, that’s a massive take-away for me. So, you know … Whether or not I’ll ever need to use that … But if I hear of people, I didn’t know that 21 days, so …

Yeah.

That will stick with me.

It’s some …

Yeah, hopefully … [inaudible 00:47:53]

It’s really important, because a lot of people, it takes them … It’s like a bit of a grieving process, and it’s actually surprising if they get to you within that 21 dat period.

But I’ll keep it in mind, and hopefully I’ll never have to tell anyone. But …

Yeah. And the other way you can enforce it is through discrimination law. So if you’ve made the request because of your age, or you’ve made the request because of a carer’s responsibility, or because of a disability, then potentially, if we’ve lost the 21 day time frame, you might still be able to action it under state or federal discrimination law. And that time frame varies between six and 12 months, to commence the action.

And again, it’s an action that can actually be commenced whilst you remain in the employment. And with all of these enforcement processes, they are intended to be informal. They are intended to be available to people to take even without legal representation. And the first step is always conciliation. So it is really an informal process. The whomever the conciliator is will basically ask you to tell your story, allow the employer to tell their story, and then break into sort of private conference to try to resolve the dispute.

And when the employment has ended, the approach to that is very much like, “What’s been the loss of wages so far? How long has it lasted to take you to find another job?” And you know, trying to sort of provide some relief to you in that period. And I think also, probably really importantly, a lot of people don’t want to take action because they think it’s probably going to damage their professional reputation. I would say that in my experiences, in some cases, it can actually be to the contrary, because part of these deals that’s reached, these settlement arrangement that are reached, you know, put you into a conciliation conference, they almost always have three general terms of settlement.

So there’ll probably be a payment of some amount. They payment is made because the employer is releasing the employee from the claims that it says they have against them. And there’s confidentiality attached to the settlement, so neither party can discuss it. Neither party can talk about the fact that the claim was made, or what the settlement of it was, or what the nature of it was about.

Right.

And the third one, which is really, really important to individuals that are worried about that professional reputation piece is that every settlement agreement that I’ve worked with for the past 30 years contains a non-disparagement provision, which means that the employer can’t disparage you in any way. So if a prospective employer calls them, they can’t disparage you in any way. And you won’t disparage them. So you know, the people that have that reluctance about enforcing their rights because of those things, remember that these matters are dealt with informally, they’re dealt with generally on a without prejudice basis, which means it’s not open to the public to know any details of them. And they are almost always resolved on the basis that neither party can disparage the other. And that’s, actually, often a really useful and powerful outcome for an employee that might be concerned that their employer might be bad-mouthing them because of whatever the circumstance that arose around the dismissal.

Can I ask you a simple question, not knowing the terminology? Disparagement. What’s those mean, in details? So if I went through this process and my concern is I won’t be able to get a reference that I’ve got at that company, would that agreement say that the employer does need to give a reference, and not make, I suppose, any links to …

Yeah. So normally, employers …

Guarantee them, kind of? [inaudible 00:51:56]

Yeah, so what you can do is … A lot of settlement agreements include a requirement for the employer to provide a statement of service, so most employers, including really big employers, but most employers have for a long time now moved away from providing glowing written references. But what is really stand is to provide a statement of service.

So a statement of service that would just say, you know, “Carly Stebbing has been employed by Company X from this date til this date.” Often that would include an agreement that the employee resigned. So, you know, “Carly resigned on this date, and the last position that she held with us, as a lawyer and her primary duties as a lawyer were X, Y, and Zed. If you want to confirm this statement of service you can contact so and so.” And there’s often an agreement that whoever the contact person is will say nothing other than, “I can confirm that that statement of service has been issued by the company. It’s not our policy to discuss references any further than that.”

So that’s like a fairly standard line, and that way it’s not … And that is actually genuinely a lot of businesses policies on providing references now anyways, that they don’t … A lot of businesses have a written policy that they’re not gonna do anything beyond providing a statement of service, and they’re not gonna say whether you were good, bad, or otherwise. Just that you were there and that you did that job.

As to whether or not … Generally speaking, the best thing for an employee to do is have a point of contact that’s exited the organization anyway, that they can just have effectively a personal reference to confirm their employment while they were there.

But those non-monetary items … And the non-disparagement is kind of like saying, around the defamation piece. You know, the person, they can’t say or do or write or publish anything that is any way going to cause harm to your reputation.

Okay.

And that’s, I think, a really important thing, for a lot of people, when they leave an organization.

Absolutely. That would provide a lot of comfort if you’re looking at going down this path.

I think that pretty much sums up what I wanted to cover off today, in terms of Flexism and what your rights are, and how to enforce them. So my business is called Resolution 1-2-3. And I founded it last year in order to remove obstacles to justice for individuals. So I was increasingly finding in private practice that lawyers had basically priced themselves out of the market for a lot of individuals, and effectively that was anyone earning in between sort of $60,000 and $120 to $150,000. Just couldn’t afford to engage a lawyer to act for them. And so my business has been set up in a way to remove that obstacle, so that you can access employment lawyer advice quickly. The employment lawyer advice is simple, and importantly it’s affordable. So we have up front, fixed fee arrangements, and our cost structure is designed to enable us to provide that service as cheaply as possible.

I have designed a web application to help an individual that thinks they might have an employment law claim. They can jump onto the website and look for the eligibility questionnaire. And the questionnaire will basically just take the user through a series of questions, and it’ll help determine, if example, you might have an unfair dismissal claim, or a general protections claim, or a discrimination law claim. And if we identify that you do, then it will help prompt you to collect the evidence that you’re going to need in order to bring that claim.

We offer sort of a free consult to have a chat about whether or not you do have a claim, whether or not you should look at proceeding, and you can … All the contact details are up on that slide.

Gorgeous. Thank you, Carly. So if you are interested in learning more, jump on the website, check out the [inaudible 00:56:13] questionnaire. And Carly, you’re on LinkedIn, you’ve got social media for Resolution 1-2-3.

Yes.

So maybe, follow Carly now because you don’t know in the future if you might need to share the details with someone. [inaudible 00:56:27] Thank you, Carly, so much for joining us today. I’ve learned a lot, and I hope you have too. Happy Flexible Working Day!

Thank you. Thanks. Bye.

And thank you for being a passionate supporter, and … [crosstalk 00:56:41]

Yeah, no. You’re welcome.

[crosstalk 00:56:43] this year, Flexible Working Day. We really loved some or your narrative in getting the message out. But thank you.

Thank you.

Have a lovely day!

You too. Bye.

Bye.
PART 3 OF 3 ENDS [00:56:52]