Flexible work arrangements in a post-COVID environment

By now, nearly every legal professional, even those in the most traditional of firms, will have spent an extended period of time working from home as a consequence of the COVID-19 pandemic, even if only temporarily. Whether willingly or unwillingly, almost every Australian law firm has been a participant in the world’s largest impromptu working-from-home experiment.

Prior to the pandemic, employers feared that working from home often ended up being ‘shirking from home’ – a chance to slack off in the absence of supervision – and flexible working arrangements were primarily seen as an issue relevant only to new parents and primary carers.  But the working-from-home experiment has now produced data – and many employers have found that self-motivated, highly-skilled professionals are in fact more productive when they have the option to work from the comfort of their own home.  WFH advocates will know this isn’t really news – a study by academics at the Harvard and Northeastern Business Schools of a telework programme at the US Patent and Trademark Office, all the way back in 2012, found that allowing employees to work from home, and even from different cities, improved productivity and produced cost savings for the organisation, and a 2014 study of a Chinese travel company produced similar results – but the benefits of flexible work are now more widely known.

But the benefits of WFH can be overstated. It is not uncommon to hear professionals reflecting that during quarantine, they missed real-life social interactions and “water cooler chats” – the kind of organic interactions that build a sense of belonging in a team, and help to resolve interpersonal issues and conflicts at work. Slack and other social applications can emulate the effect of these interactions but there’s no replacement for the real thing.

The Law Society of NSW has published a variety of guides for practitioners seeking to implement more flexible work arrangements, referring to workplace flexibility as ‘the new normal’.  Practitioners should also refer to the NSW FairWork Ombudsman’s page here, which includes examples of flexible working arrangements as changes to:

• hours of work (e.g. changes to start and finish times);
• patterns work (e.g. split shifts or job sharing); and
• locations of work (e.g. working from home).

In Episode 8 of Hearsay, “Working 9 to 5, redefined” with Nicola Martin, we discuss relevant aspects of employment law in relation to flexible work arrangements such as working from home in the COVID-19 pandemic.