April 19, 2024


Equality opinion

What employers should include in a Flexible Working Policy and other recommended documents

What employers should include in a Flexible Working Policy and other recommended documents

Pursuant to improvements contained in the Work (Modification) Act 2022 (“the Amendment Act”), which the govt has declared will arrive into pressure on 1 September 2022, workers in Malaysia will be permitted to apply to their employer for a Flexible Working Arrangement (“FWA”). (For a additional in depth search at the variations less than the Modification Act, read through my previously article: “Malaysia Work Act amendments: 7 vital adjustments for companies to note”)

The introduction of FWAs below the Amendment Act is the first time that FWAs have been formally recognised in Malaysia, and may be the initial of several these adjustments — the federal government has also shared that it is conducting scientific studies on the feasibility of a 4-working day performing week. Malaysian businesses can count on FWAs to turn into much more commonplace in the close to future, and must start out preparing now. Various of my shoppers are currently putting in location the needed adaptable operating insurance policies and other relevant documents to not only guarantee that they are not caught unprepared arrive the 1st of September, but also to lay the foundations for the anticipated modifications in the future few of years.

This write-up sets out the critical points that have to have to be included in a Adaptable Functioning Policy, and also other advised administrative/HR files that businesses should strongly consider putting into area to effortlessly accommodate FWAs.

What the Amendment Act claims

The foundation of any interior paperwork and insurance policies have to normally be what is truly said by the legislation. The FWA provisions in the Amendment Act are rather simple. FWAs are furnished less than the Modification Act by the introduction of a new Portion XIIC.

A new Segment 60P states that an worker may use to an employer for a adaptable functioning arrangement to change the —

  • several hours of perform
  • times of function or
  • put of perform,

in relation to his employment.

The application system is set out in a new Portion 60Q, which states that:

  • The employee’s adaptable doing the job arrangement application have to be in producing “and in the kind and way as could be identified by the Director General” (for now, no path has been made about the sort/manner of the application).
  • The employer will have to approve or refuse the software in just 60 times from the date the software is been given, and notify the employee in writing of the selection.
  • If the application is refused, the employer have to point out the floor of this sort of refusal.

Therefore, these are the critical legal aspects which ought to be protected by any inner insurance policies, and which will then be supplemented by content to handle different other useful factors.

Important factors that need to be protected in a Versatile Performing Coverage

Even soon after the Amendment Act comes into power, it is not necessary for companies to place in location a Flexible Performing Policy. However, introducing this sort of a plan is a advisable ideal apply, as doing so will deliver clarity for the management and staff members on what the employer’s placement is about versatile doing work preparations. A crystal clear policy also implies there will be certainty for all parties on how FWA programs will be managed, and the Versatile Doing the job Plan can be supplemented by an interior steerage doc for HR/administration.

A Versatile Working Coverage can vary in complexity and duration, from as easy as a several paragraphs on a solitary website page, to a significantly much more complete policy. These are a few vital concerns which an powerful Flexible Doing the job Plan should deal with.

  1. The applicability, scope, and impact of the coverage: It really should be clear from the outset which workers the policy applies to. This is specially significant for bigger and multi-countrywide organisations which are most likely to interact staff on a extensive assortment of distinct work associations, including aspect-time staff, temp staff, secondees, and interns. The policy must also state that whilst versatile performing arrangements are recognised by the company, this does not signify that all apps for these types of preparations will be quickly accredited, or that employees are contractually entitled to these preparations.
  2. The diverse types of flexible functioning arrangements recognised by the company: Whilst the Amendment Act generally permits workforce to apply to change the several hours, days, and place of operate, an employer can provide more information by an inside Flexible Functioning Policy. For example, the coverage can outline particular preparations these as non permanent FWAs (exactly where personnel can implement for a FWA for a fixed period of time of 3-6 months), or fastened shift FWAs (where by staff members can decide on either to perform Monday-Wednesday or Wednesday-Friday). The advantage of expressly setting out the different sorts of “company approved” FWAs is that it supplies workforce with obvious solutions to pick from, lets the enterprise to have some management above the types of FWA apps that will be submitted, and also sets anticipations that FWA apps outdoors people possibilities are very likely to be rejected.
  3. Any pre-determined disorders or constraints on adaptable functioning preparations: In addition to the specific varieties of FWAs as pointed out in the preceding segment, the coverage should really also spell out the problems or restrictions on all those FWAs. For case in point, the enterprise may perhaps enable an staff to work remotely, but matter to a limitation that the locale ought to be in the exact country or within a particular distance from the office, or that the employee should be able to be existing in the place of work for a every month in-particular person conference, or be in a position to go to conferences at customers’ places of work. As yet another case in point, the corporation may allow reduced doing work hours issue to a least number of hrs per week.
  4. Obligations in relation to confidentiality and wellness and protection: Two major concerns that employers have when it arrives to remote working are in relation to confidentiality, and wellness and basic safety. The Adaptable Functioning Coverage need to set out the expectations and obligations on workers who are authorized to perform remotely. The extent of these obligations will depend on the distinct role, details accessibility level, character of function, as properly as market-unique specifications. Some businesses may well involve substantial-amount security in relation to documents or supplies to be in area in the employee’s remote workspace. For wellness and basic safety, there should be minimum specifications in phrases of machines and the issue of the workspace (or the prerequisite to have a designated workspace), and some businesses may possibly want to mandate a wellbeing and security inspection, or a self-evaluation checklist.
  5. Probable alterations to income, versatile doing work allowances, or other benefits/remuneration: Based on the varieties of FWAs specified in the coverage (see earlier mentioned), it could be possible to spell out details of modifications to payment as a outcome of an permitted FWA. Alternatively, the plan can frequently clarify that specified sorts of FWAs will come with improvements to income or benefits — for example, a long term reduction in operating hrs will imply that an employee’s current income will be diminished, and quite possibly primarily based on a fixed formula. For multinational employers, an worker who will be doing the job in a diverse state below a FWA may have to change to a distinct payroll locale and have his/her income localised to his/her new place based on the company’s pay scales in that jurisdiction. The coverage can also involve aspects of any new allowances as a consequence of a FWA (for case in point, distant office devices and set-up allowance), or any current allowances that will no more time be payable (for illustration, travelling or parking allowances).
  6. The company’s anticipations of staff members underneath a FWA: A in depth Versatile Operating Coverage need to also briefly established out the company’s expectatations of staff members who have been accredited to get the job done under a FWA. This ought to contain the fundamental principles such as that workforce with minimized operating hours are nevertheless expected to complete their vital deliverables, go to all scheduled meetings, and continue to abide with the company’s processes and policies. It can also include things like details the place appropriate, this sort of as remaining demanded to go to a least number of on-web site meetings.
  7. The application approach: A essential aspect of any Adaptable Working Policy will be the application and approval process. In addition to the general applicability/scope segment which was pointed out higher than, the segment detailing the application course of action can set out other eligibility criteria. For case in point, the company may perhaps make it distinct that programs from personnel in their probationary time period, or who are at the moment undergoing a PIP, will not be authorised. This portion can established out how purposes can be submitted (preferably the organization will also have a standard FWA software sort — see “Other recommended documents” beneath), and the approval approach. Wherever related, the policy need to also describe that any approval is conditional upon the staff signing a Flexible Operating Settlement or a supplemental document amending the pertinent phrases and disorders of their present work agreement.

Other recommended files

In addition to the Versatile Performing Policy, it is also a recommended very best follow for companies to have some or all of the adhering to documents in position:

  1. Workflow or guideline for HR/administration: This is a private document for HR/administration-stage personnel only, and will established out direction on how to handle apps. This will contain environment out the appropriate individuals-in-cost for managing, choosing on, and responding to apps, as properly as the critical things to consider and pertinent documents. This is an essential direction document to ensure that the right course of action is adopted and the firm is not exposed to any authorized danger.
  2. Template FWA application form: This standardised software form will be referred to in the Flexible Doing work Coverage, and workforce will be strongly inspired to use this form when applying for FWAs. Possessing a template in spot will ensure that all the pertinent information is submitted as section of the software, and also lets the business to remind workforce of the phrases and situations that will be hooked up to effective FWA purposes. If the Flexible Performing Coverage clearly sets out the various forms of FWAs recognised by the enterprise (see “#2: The different varieties of adaptable working arrangements recognised by the company” earlier mentioned), then the application type can consist of box-tick selections (for example, the staff can use for “FWA 4: Modify of times of get the job done to Wednesday to Friday”).
  3. Template acceptance or rejection letters: Once again, acquiring this standardised doc in location will make it less complicated for HR/administration and ensure that the corporation is not uncovered to any authorized threat. The typical approval letter will listing down all connected files (for example, the FWA Arrangement or compliance checklist) and standardises all essential variations to the phrases and conditions of employment. The typical rejection letter will contain evidently-worded and lawfully-acceptable explanations for rejecting any FWA apps.
  4. Template Flexible Operating Settlement: The purpose of this document is to set out any changes to the present employment agreement or phrases/problems of work. Whether or not this has to be in the kind of a separate contract, an addendum to the work agreement, or a very simple letter of enterprise by the staff, will rely on the extent of the variations necessary.
  5. Compliance checklist for distant doing work arrangements: This is the self-assessment checklist referred to earlier mentioned (see “#4: Obligations in relation to confidentiality and health and safety” above) and is a pretty regular document that businesses who have personnel working remotely need to already be acquainted with.
  6. Template FWA termination letter: This template is to convey any FWAs to an conclude if expected. Owning this in spot will guarantee that any legal alterations that had been executed because of to the transform to a FWA will be correctly reversed in which important.

Advantages of making ready a Adaptable Operating Coverage and the other suggested paperwork

While it is not mandatory for businesses to have a Versatile Doing work Plan or any of the other documents advisable in this short article, lots of Malaysian businesses are previously making ready these paperwork, and it is a advisable greatest observe with a number of crystal clear benefits:

  • It plainly communicates the employer’s position on FWAs to personnel, and sets out the employer’s anticipations of any staff members who are thinking about FWAs, as effectively as the repercussions of FWAs this kind of as modifications to payment and advantages.
  • Location out the sorts of FWAs recognised by the employer will support to streamline the variety of FWAs that staff members will implement for. For employers with a big workforce, this is crucial to make sure that there are not much too quite a few variants in the variety of operate arrangements.
  • The standardisation and streamlining of the approach will also conserve a large amount of time for HR/administration and generate a lot more certainty in the approach from commence to complete. This tremendously decreases publicity to authorized risk for any potential missteps.
  • From a functional point of view, obtaining a obvious Adaptable Doing the job Plan will also aid to make it less difficult to justify any rejections of FWA purposes that fall exterior the parameters and problems set out in the coverage.