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Flexible Working : The Right To Request And The Road Ahead

Tapti Bose
7 Jan 2021 4:09 AM GMT
Work From Home Issues
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While the office is an artefact of history, the modern workplace epitomises the future. In pre and post -independence India the work force consisted primarily of the male members of the family and in majority of the cases the said male member was the sole breadwinner, who had to stay outside home for a considerable time to provide for his family. At present the work force has undergone major changes to include dual parents, single parents, single women and persons of retiring age. Further due to the growth of digitisation and telecommunications the nature of the work itself has undergone major changes. Work anytime, Work Anywhere and Work on any device would very much summarize the modern workplace practice. Such changes would naturally mandate provisions for flexible work arrangement in the work place. The World Health Organization has declared pandemic on 11 March, 2020 and consequently some governments in different states have advised companies to allow their employees to work from home. During the lockdown many workplaces adapted the flexiwork arrangements .Yet after the lockdown most of them have it mandatory for the work force to return to the physical office. Many employees have been forced to avail far more costly private transport facilities. Employees with co-morbidities or vulnerable members in the family have found it difficult to return. Therefore, if the nature of work does not require the worker being physically present, the recommended course of action would be to ensure work from home even if this is not as per the usual policy of the establishment. At present therefore the flexible work arrangements are no longer a rarity or exception.

Considering that the workforce and the nature of work has changed requiring employers to provide their employees with flexible working setup, major developing countries of the world have enacted at least the right to request through which employees are able to ask for a flexible workplace arrangement. Very recently the Ministry of Labour and Development published the Model Standing Orders for the Service Sector, 2020 incorporating provisions of work from home and workplace flexibility.

What is flexible working :

Flexible working refers to those working arrangements which provide viable alternatives to the standard fixed-scheduled working systems. The types of flexible work arrangement based on the following criteria include:

1. Total Time of Work: Working less hours (part time), full hours on fewer days (compressed hours), core hours on fixed days (flex time)

2. Arrangements of Work: Two or more employees doing the same work and splitting the hours (job shares); and

3. Place of work: Doing some or all the work at home or at a remote location though telecommuting.

The notional extension of the modern workplace under employment laws :

The Indian Courts have time and again applied the concept of 'notional extension' of the employers' premises while interpreting workmen compensation laws and also the Sexual Harassment of Women in Workplace Act of 2013. In the landmark case of Saurashtra Salt Manufacturing Co. v. Bai Valu Raja & Ors (AIR 1958 SCC 881), [3] the Supreme Court observed, ' the theory of notional extension of the employer's premises [was] to include an area which the workman passes and repasses in going to and in leaving the actual place of work.

In Saurabh Kumar Mallick v Comptroller & Auditor General of India & Anr [4] , The Hon'ble Delhi High Court in discussing what constitutes 'workplace' under the Sexual Harassment of Women in Workplace Act 2013 of stated: 'It is imperative to take into consideration the recent trend which has emerged with the advent of computer and internet technology and advancement of information technology. The test laid down to determine a particular place is workplace or not, are the following : a) proximity from the place of work; (b) control of the management over such a place/residence where the working woman is residing; and(c) such a residence has to be an extension or contiguous part of the working place.' The court thus acknowledged the modern workplace as both a physical and digital space.

Draft Model Standing Order for the Service Sector,2020.:

Very recently the Ministry of Labour and Development published the 'Model Standing Orders for the Service Sector, 2020' applicable to 'industrial establishments employing 300 or more number of workers and which are covered under the Occupational Safety, Health and Working Conditions Code,2020' [ Clause 1( 2)]. The said Standing Order incorporates provisions for work from home . Clause 10 of the said Standing Order states as, "subject to conditions of appointment or agreement between employer and worker, employer may allow a worker to work from home for such period or periods as may be determined by employer".

The Law in other Countries :What is the right to request and ( duty to consider) :

Many countries all over the world have made the necessary changes in their laws to accommodate such flexible work arrangements including Great Britain , Australia, New Zealand , and even some states of USA have brought about the right to request laws where employees are able to ask for a flexible workplace arrangement.

In Australia the Fair Work Amendment Act 2013 which provided for the expansion of the categories of employees who are eligible to request flexible work arrangements to include a wider range of caring circumstances as follows:

  1. a parent, or a person who has responsibility for the care, of a child who is of school age or younger;
  2. a carer ;
  3. an employee with a disability;
  4. an employee who is 55 or older;
  5. an employee who is experiencing violence from a member of the employee's family; and
  6. an employee who provides care or support to a member of the employee's immediate family, or a member of the employee's household, who requires care or support because the member is experiencing violence from the member's family.

The Flexible Working Regulations 2014 (Regulations) applicable in England, Scotland and Wales expanding the scope of right to request flexible working under Section 3 provides , 'An employee who has been continuously employed for a period of at least 26 weeks is entitled to make a flexible working application.' Previously however only employees with parental or caring roles could avail the right to request flexible work arrangement .The Working Hours Act 2020 in Finland is one of the most progressive legislations where employees can decide the hours and place of work. Employers under the Fair Work Act 2009 and under The Flexible Working Regulations 2014 (Regulations)can refuse the right to request on reasonable business grounds .

The scenario under employment and labour laws in India

Traditional office spaces with strict time schedules and traditional physical spaces with email as the primary means of communication are becoming obsolete. The modern work place is something more than just a set of computers or new software package or a chat group for employees. A collaborative, productive workplace that's integrated with technology but at the same time champions work life balance and equality would signify true modernisation. The aspirations of welfare state mandate that the employee's requirement of equality and work life balance be considered. Yet attitude wise employers and even individual managers are yet to be convinced of the advantages to business and continue to undermine the performance of employees in such circumstances. The Model Standing Orders for the Service Sector,2020 is definitely laudatory and a step in the right direction to formalise the concept of workplace flexiblity. The lack of legislation, well documented guidelines and policies to support flexible work arrangements in organisational work culture has been one of the barriers to flexibility and the said legislation in such circumstances would at least give such employees the opportunity to avail flexible work arrangements. On the other hand without flexible work arrangements thousands of qualified candidates are left out of the workforce.

Flexibility can be taken from the point of view of the employer or employee Flexibility on the part of the employer would mean a hire and fire policy which would be in conflict with the aspiration of the welfare state enshrined in our constitution. The "right to request", implemented in most countries laws though are not subject to oversight or review by a court highlight the employees' right to request flexible work arrangements. The Model Standing Orders for the Service Sector, 2020 attempts to legitimise work from home but they provide the same from the part of the employer. A more specific, detailed and separate legislation on work place flexiblity considering its various aspects would signal the road ahead. That should include provisions relating to provisions for employee safety, working hours , work completion and data security. Such legislation would not only update our labour laws but would bring in a sea change in interest on the subject.

Views are personal.

(Author is a Practicing Lawyer)

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