Flexible Work Arrangements in Singapore: a look at the new Tripartite Guideline

What you need to know

• From 1 December 2024 the Tripartite Guidelines on Flexible Work Arrangement Requests (FWA Guidelines) will come into effect.
• While they do not have force of law, similar to the position with other tripartite guidelines the FWA Guidelines are framed as "mandatory" and the Government expects compliance.
• Employers are required to properly consider formal flexible work arrangement requests made by employees who have passed probation. While employers retain the prerogative to reject a request, this should only be done on reasonable business grounds.
• Employers must provide written responses to formal requests for flexible work arrangements within two months of receipt of the request. Where the request is rejected, the employer must provide a reason for the rejection.

What you need to do

• Consider whether your current flexible working policy meets the requirements of the FWA Guidelines. Even if it is not consistent with the FWA Guidelines, or you do not have such a policy in place, employees will still be able to request flexible work arrangements under the FWA Guidelines.
• Update your policy (if required) to specify the information that must be stated in a formal request for a flexible work arrangement and the form in which the request is made.
• Determine who in your company will be responsible for receiving and deciding on formal flexible work arrangement requests. If it will be line managers, ensure that they receive training before 1 December 2024 on their obligations to properly consider such requests, and the bases on which requests can be rejected.

Evolution of the FWA Guidelines

The introduction of the FWA Guidelines follows a careful and considered socialisation of flexible work arrangements by the tripartite partners that commenced in 2014. While a Tripartite Standard was introduced in 2017, the COVID-19 pandemic significantly increased the use of flexible work arrangements in Singapore and cemented them as a key feature of progressive workplaces.

The FWA Guidelines are framed at a general, high level that makes them well suited to subsequent integration into legislation while also ensuring that employers and employees have sufficient flexibility in the implementation of FWA processes. There are significant similarities between the terms of the FWA Guidelines and the terms of Australia's Fair Work Act 2009, under which the right to request flexible work arrangement is legislated.

Who can apply for a flexible work arrangement under the FWA Guidelines

Under the FWA Guidelines, any employee who has passed probation can make a request for a flexible work arrangement. This represents a significant difference with the Australian approach, under which an employee is only able to make a request if they have at least 12 months' service and fall into one of the following categories:

• the employee is pregnant;
• the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;
• the employee is a carer;
• the employee has a disability;
• the employee is 55 or older;
• the employee is experiencing family and domestic violence; or
• the employee 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 family and domestic violence.

Significantly, there is nothing in the FWA Guidelines that would prevent an employee who does manual labour, shiftwork or blue collar work from requesting a flexible work arrangement.

What flexible work arrangements are included?

The FWA Guidelines do not contain an exhaustive list of flexible work arrangements that might be permitted, leaving employers and employees to agree on arrangements that would be suitable for their individual circumstances. However, the FWA Guidelines broadly contemplate three types of flexible work arrangements:

1. Flexi-place – arrangements for employees to work flexibly outside of their usual office location;
2. Flexi-time – where employees work at different times but with no change to their overall work hours or workloads; and
3. Flexi-load – where employee work different hours with commensurate changes to workload and remuneration.

The FWA Guideline deals with longer term structured flexible work arrangements – it is not intended to capture or regulate ad hoc requests for changes to working arrangements.

Does the employer need a policy? How does an employee make a request?

The terms of the FWA Guidelines do not supplant an employer's policy on flexible work arrangements – employers are free to continue to have their own policies or more generous approaches. However, if an employer does not have a policy in place on flexible work arrangements, or the terms of the policy are less generous than the FWA Guidelines, then the FWA Guidelines will apply.

Employers should put in place a process for employees to make formal flexible work requests. This process can be set out in the employer's policy and the policy can specify the form of the request, information that should be included and the person to whom the request is to be made.

If the employer does not have a policy or a set process for the making of formal requests, the employee can make the request in writing using the template set out in the FWA Guideline. Employers are free to create their own template or use TAFEP's suggested template. They can include additional information that is specific to the business – for example, reasons FWAs may not be suitable for certain roles, reasons the company might reject a request and expectations around the use of flexible work arrangements.

What must the employer consider? Are there set grounds for rejection?

The FWA Guidelines contain the following guidance for considering requests:

1. The parties are "encouraged" to discuss requests in an open and constructive manner, to come to a mutual agreement. In other words, there is no requirement to come to an agreement on the issue. This also used to be the position under the Australian legislation, however since June 2023 employers in Australia have been required to "genuinely try to reach agreement" with employees. It remains to be seen if a similar requirement will be introduced in Singapore in future.
2. Employers should consider requests properly. The focus when assessing the request should be on factors related to the employee's role and how the arrangement would affect the business or performance of the employee's role.
3. Employers can refuse requests on reasonable business grounds but not personal bias against flexible work arrangements or for reasons that are not "directly linked" to business outcomes.
   The FWA Guidelines provide some examples of reasonable business grounds for refusing requests:

• Cost;
• Detrimental impact on productivity or output (including an impact on the ability of the organisation to meet customer needs);
• Feasibility or practicality (including that there is no capacity to change other employees' work arrangements, or there would be a need to hire new employees to approve the request).

The "reasonable business grounds" test is also consistent with the Australian legislation and the examples broadly similar, though the Fair Work Act 2009 also expressly states that the following would be legitimate business grounds for refusal:

• The working arrangements requested would be likely to result in a significant loss in efficiency or productivity; and
• The working arrangements requested would be likely to have a significant negative impact on customer service.

Importantly, given its role in educating employers regarding flexible work arrangements, the FWA Guidelines provide examples of unreasonable grounds for rejection of requests, including:

• Managers not believing in flexible work arrangements;
• Supervisors preferring to have direct sight of employees to see if they are working, even though their performance is satisfactory;
• Custom and practice of the organisation to have all staff in the office during office hours, and a desire to ensure other employees do not also request flexible work arrangements.

The second point is particularly important, as it does leave open the right of an employer to refuse a request from an employee who needs additional supervision, such as an employee on a performance improvement plan.

Response to a FWA request

Employers are required to respond to a request in writing within two months of the request being made – this is broadly consistent with the 60 day time limit in Malaysia but much longer than the 21 days provided in Australia. If the employer refuses the arrangement, the employer must provide a reason for the rejection.

The FWA Guidelines do not expressly address the issue of whether an employer's proposal of a different arrangement is a refusal. Given that the FWA Guidelines encourage the parties to discuss alternative arrangements if a request is refused, it would be reasonable to view the employer's proposal of a different arrangement as a refusal of the employee's request (and this is the position in Australia). Accordingly, when responding to a request, employers who are unable to agree to the employee's proposal but would be agreeable to another form of flexible work arrangement may wish to state this fact. This may assist the employer in the event of further escalation of the issue to a union or TAFEP.

External right of review

The FWA Guidelines do not currently provide an external dispute resolution mechanism where the parties cannot agree in relation to a flexible working request. When announcing the FWA Guidelines, Minister of State for Manpower Gan Siow Huang suggested that employers who do not comply may be approached by TAFEP. Media reports also suggest the Ministry of Manpower may issue "warnings" and require recalcitrant employees to attend corrective workshops.¹

However, the current position may not remain unchanged. For a significant period of time, the Australian regime also did not include any dispute resolution mechanisms (though in practice most employees covered by a collective agreement had some limited rights to bring disputes before the industrial umpire). However, since June 2023, the Fair Work Commission has had the power to arbitrate disputes regarding flexible work requests and make orders requiring an employer to grant a request. While it does not seem that there are plans to introduce a similar dispute resolution regime in Singapore, under Singapore's unique model of tripartism it is possible that (if the Guideline is subsequently given the force of law) there may later be scope for TAFEP or the Employment Claims Tribunal to be engaged in dealing with disputes about such requests.

Conclusion

The introduction of the FWA Guidelines demonstrates the Government's commitment to the continued improvement of working conditions in a collaborative manner designed to achieve good outcomes for employees while also promoting greater productivity. Employers have been provided with a significant transition period to adapt to the new requirements and should take steps to comply with the FWA Guidelines if they have not already done so.

Please contact us if you would like more information on any of the issues raised.

_{¹https://www.channelnewsasia.com/singapore/flexible-work-arrangement-requests-tripartite-guideslines-employers-employees-4266831}