Flexible Working Arrangement – How does it work under the new Employment (Amendment) Act 2022?

The new Act comes into effect on the 1st of September 2022

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Are you ready for the changes in the new Employment Act? (Image for illustration purposes)

The Human Resource Minister has recently announced the enforcement date of the Employment (Amendment) Act 2022 (the Act) to be on the 1st of September 2022. This would mean that all of the newly introduced, amended, deleted, and retained provisions in the Act must be complied with by employers in the private sector starting from the reckoning date of 1st September 2022.

Among the key amendments that are seen to have an immediate impact on the private sectors are the reduced number of weekly working hours from 48 hours to 45 hours, the increased number of maternity leave from 60 days to 98 days, and the introduction of the long-awaited paternity leave of 7 days. The above-mentioned provisions have been heavily debated in Parliament over the past decade and therefore, it can be said we have anticipated these changes.

However, there were also amended provisions that took us by surprise, for example, the deletion of Section 44A (a clause that provides maternity protection to all female employees, regardless of the First Schedule scope), the introduction of Section 69F (a discriminatory in employment clause) and Section 60P (flexible working arrangement application by employees).

We would like to discuss specifically the introduction of the newly entitled right of an employee to apply for a flexible working arrangement from an employer. The new clause (Section 60P) provides the following;

  • An employee has the right to apply (in writing) for a flexible working arrangement to vary the hours of work, days of work, or place of work;
  • The employer is obligated to provide a decision (in writing) to approve or refuse the application within 60 days from the date of application;
  • The employer must provide a reason (in writing) for refusing an employee’s application.

However, the clause is silent on the following:

  1. Any suggested flexible working arrangement scheme i.e. how many hours/days are allowed to be varied, the type of location for remote working and etc;
  2. The obligation for an employer to introduce a flexible working arrangement scheme in the workplace. In other words, it is not an obligation for employers to allow an application for work flexibility when the business does not offer any.

We understand that the COVID-19 pandemic impacted most business working methodologies when companies were forced to find alternatives and solutions to flexible working arrangements (i.e. working from home, reduced working days, alternate office arrangements and etc.) during the lockdown, some companies have adapted to the “new norm” by continuing its newly adapted practices up to date.

However, not all businesses are able to cope and adapt to the unconventional working method especially those within the manufacturing, hospitality, and industrial sectors. Thus, even with the introduction of Section 60P, employers are deemed to own the right to not introduce a flexible working arrangement, to determine the flexible working arrangement scheme applicable to the workplace, and the right to determine who is eligible to apply.

Given the current market, the trend is to have work flexibility as an employment perk and a preferred arrangement for talents across global industries, it is highly suggested for companies to consider introducing a work flexibility policy in the workplace. We at MECA have been actively assisting clients to draft workable policies and workable management structures for better implementation of the flexibility scheme.

We do see a rising trend for desired talents to scout for companies that are able to provide such flexible arrangements, therefore, should your company be planning to grow your talent pool beyond local boundaries or considering exploring the benefits of adopting work flexibility arrangement, this is the right time to join the bandwagon.