Flexible Work Arrangements in Singapore: a look at the new Tripartite Guideline
19 April 2024
19 April 2024
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.
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:
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.
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:
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.
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.
The FWA Guidelines contain the following guidance for considering requests:
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:
Importantly, given its role in educating employers regarding flexible work arrangements, the FWA Guidelines provide examples of unreasonable grounds for rejection of requests, including:
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.
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.
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.
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.
This is a joint publication from ADTLaw LLC (a Singapore law practice) and Ashurst LLP who together form Ashurst ADT Law, which is a Formal Law Alliance in Singapore.
Ashurst LLP is licensed to operate as a foreign law practice in Singapore. Where advice on Singapore law is required, Ashurst LLP will refer the matter to and work with ADTLaw LLC or other licensed Singapore law practices where necessary.
Ashurst LLP is part of the Ashurst Group which comprises Ashurst LLP, Ashurst Australia and their respective affiliates (including independent local partnerships, companies or other entities) which are authorised to use the name "Ashurst" or describe themselves as being affiliated with Ashurst. Some members of the Ashurst Group are limited liability entities. For more information about the Ashurst Group, which Ashurst Group entity operates in a particular country and the services offered, please visit www.ashurst.com
This material is current as at 19 April 2024 but does not take into account any developments to the law after that date. It is not intended to be a comprehensive review of all developments in the law and in practice, or to cover all aspects of those referred to, and does not constitute legal advice. The information provided is general in nature, and does not take into account and is not intended to apply to any specific issues or circumstances. Readers should take independent legal advice. No part of this publication may be reproduced by any process without prior written permission from Ashurst. While we use reasonable skill and care in the preparation of this material, we accept no liability for use of and reliance upon it by any person.