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McKenzie, Andrew --- "Trend toward flexible work arrangements" [2020] PrecedentAULA 57; (2020) 160 Precedent 22

TREND TOWARD FLEXIBLE WORK ARRANGEMENTS

By Andrew McKenzie

At the time of writing this article, the world is in the midst of a health pandemic. This has led us to an enormous workplace experiment, which may finally bring the legal industry in line with modern work practices that have the potential to create lasting change.

Working from home can be incredibly liberating for some. Many have thrived while working remotely, a situation which has been imposed upon them through business necessity for survival and the continuation of servicing clientele. They have enjoyed the freedom to work in an environment free of difficult colleagues and office politics. Distraction, in some cases, has been reduced and the ability to focus and be flexible in how they work, unrestrained by time or direct supervision, has created unanticipated autonomy.

Some have found working from home with children overwhelming. Some have struggled with IT issues. Others have felt profound isolation and loneliness. They have missed the collegiality of a work environment, the passing conversations that drive teamwork, collaboration, creativity, and the brainstorming of ideas to assist in complex problem solving.

As the waves of lockdowns ebb and flow, many questions arise. Will this new-found freedom and liberation shift employees’ views about leadership? Will the authority of management be undermined and staff less inclined to follow direction, and will management have the capacity to remain in control and monitor activity, productivity and efficiency? Can legal quality be maintained while working in these remote work environments? Will corporate culture and discretionary effort decrease because of remote working? Many of these questions existed even before the pandemic arrived.

LEADERSHIP

As legal businesses consider the cost benefits of a distributed workforce – including significant savings in office space – they might also have to acknowledge the weakening of traditional power hierarchies. Chris Jackson, Professor of Business Psychology, School of Management at the UNSW Business School, talking to The Australian Business Review in April, has said that he does not anticipate that attitudes towards leaders are likely to change any time soon. However, he considers that people are likely to return to work with different expectations regarding how their workplaces should operate, and will be ‘less impressed with micromanaging leaders’. Jackson believes that while modern managers may assert less authority than managers of the past, technology gives them more control over their subordinates. Managers ‘have given more autonomy to people but at the same time they have also developed ways of monitoring performance to make sure people are not just watching Netflix all day ... It’s not just monitoring when you log on or off a computer, but they can measure the amount of time on Facebook or time spent sending personal emails. It’s all collated and potentially analysable.’^[1]

Considering the difficulties of micromanaging a disperse workforce, Jackson has suggested that managers ‘might get back to their real job of managing rather than checking up on people to make sure they are doing things in the right way’. In many cases, employees have been forced to adapt and have been successfully self-managing. This raises the question: are managers even necessary anymore? Jackson believes they are, warning that ‘if you lose [managers] you lose a lot of knowledge and that’s especially important because when people are working at home they are not sharing so much.’^[2]

A significant challenge for leaders when staff members work remotely is that they lose the ability to ‘read the room’. A core part of a leader’s job is determining the best outcome after listening to everyone in the room. There are many non-verbal cues to look out for in meetings, but these cues are challenging to read in a video conference – the main thing lost is eye contact. A chair of a meeting can usually catch the eye of someone in the room; a gesture that can encourage reserved or nervous team members and make them feel more comfortable. This is much more difficult in a video conference.^[3]

Jackson has noted that leading through personality and charisma becomes more complex when employees can no longer see their boss as a daily presence in the office. The imposed shift to working from home has caused him to contemplate the extrovert/introvert distinction: ‘We have always thought extroverts are the people who get ahead, who socialise better, interact better, work in teams, are better salespeople. So we have wondered, why do introverts still exist?’ This has been answered in the pandemic, with introverts comfortably shifting to self-isolation and performing well in terms of productivity.^[4]

Karin Sanders, Professor of Human Resource Management and Organisational Behaviour at the UNSW Business School, talking to The Australian Business Review in April, has predicted that post-pandemic it is likely that controlling bosses will revert to type, but leaders who work on building commitment from staff rather than micromanaging are likely to continue to use the current, more hands-off style. She says that employees are likely to emerge from this period more confident and independent after considerable time spent working in ‘their own kingdom’ at home.^[5]

However, Sanders has cautioned that remote working is not ideal for everyone; for example, some employees see the office as a place of safety, which allows them to escape from violent partners or difficult domestic situations. She also points out that not everyone demonstrates the initiative or capacity to work (and particularly to work well) unsupervised.^[6]

INFRASTRUCTURE

The legal profession has always been much slower to embrace remote working and flexible hours in comparison to other professions. IT and many other industries have been working this way for years: paper files are things of the past and team meetings via Skype, Zoom and Microsoft Teams are common.

For the humble legal practice, the evolution requires the investment of time and money. The ability to shift to flexible work can impose significant outlays in IT systems to support working from home and a paperless work environment. It can require telephony changes and the implementation or purchasing of video facilities and possibly monitoring software to ensure compliance with work expectations and requirements.

The capability to move to such an environment has not always been facilitated or encouraged by our courts, which themselves have been inconsistent in their shifts to embrace paperless and video technology.

It was not until 2018 that the Queensland Supreme and District Courts allowed for the filing of some documents electronically. Those documents were restricted to a request for a consent order of the registrar, a proposed draft order, an affidavit and a notice of discontinuance. It is now 2020 and, in Queensland, we still cannot commence legal proceedings electronically. Conversely, the Family Court and Federal Court systems have made available electronic filing of all documents for years. As soon as the pandemic hit, video trials were quickly embraced by the Family Court. Magistrates shifted to conduct bail hearings by video, which dramatically improved efficiency due to a reduction in the need to transport prisoners to court houses.

Other issues have arisen regarding how offices will change post-pandemic, including if offices will ever return to hot-desking. According to office design director Simon Pole at Unispace, talking to Business Insider Australia in June, ‘The concept of jumping from desk to desk-based on “dropping in” is dead for now ... We will also see the impact on collaboration areas – originally designed to bring people together – also obsolete for the time being.’^[7]

Pole has stated that many businesses will have to reconfigure their offices to comply with COVID-19 restrictions. Those working in their own cubicles will be able to carry on as before, with only common areas and meeting rooms likely to receive an overhaul. However, for offices that have implemented desk sharing practices, there will be significant logistical challenges with implementing social distancing, and ‘they will need to review their desk sharing ratios and collect data on what percentage of their workforce will spend time working from home’. Other changes include installing hygiene stations in high-traffic areas and temperature testing in lobbies.^[8]

While remote working is on the rise, Pole has observed that one in five workers – predominately those working in management and operations – have been unable to stay away from the office. He claims that the office will likely retain a certain appeal: ‘Many clients have reported that the social isolation is having its toll on their teams. Having Friday drinks on a chat is not the same, the office banter has stopped, the cultural reinforcement is left to fortnightly emails from the CEO, and the ad hoc knowledge-sharing and problem-solving is not happening.’ He sees the rise of flexible work helping offices to change for the better, with employees mainly coming in to fulfil their own social needs rather than their presence being demanded by overbearing managers.^[9]

THE FUTURE

In an NBN survey (published in May 2020), 67 per cent of Australians said they expected to work from home more after the end of COVID-19 crisis. Eighty-one per cent said their working from home experience had positively impacted their work-life flexibility.^[10]

A survey commissioned by the consulting firm Boston Consulting Group (published in June 2020) covered more than 1,000 workers, half of whom had been engaged in some degree of remote working before COVID-19.^[11] Chris Mattey, Managing Director and Partner at Boston Consulting Group, talking to ABC News in June, identified three key reasons why workers from the survey wanted to return to the office semi-permanently:

• ‘Informal social interaction: catching up with colleagues, conversations at the “water cooler” and staff kitchen;

• Formal collaboration: working more effectively in tight groups on specific tasks; and

• Set-up: many offices have better technology and a more distraction-free environment than home offices, particularly the ones cobbled together in the initial panic of the pandemic.’^[12]

The survey results revealed how different demographics responded to the rapid work-from-home directives brought about in response to the pandemic:

• Workers aged 50 and over^[13] ‘showed comparatively smaller increases in productivity and success’ (possibly because they are more advanced in their careers and already had successful work routines established pre-COVID-19).^[14]

• Parents and carers of children ‘experienced fewer positive impacts than the general population’ – 25 per cent compared to 37 per cent – but enjoyed the more flexible working hours ‘which allowed them to prioritise work and the needs of their children’.^[15]

• Men were more enthusiastic about returning to the office than women (62 per cent compared to 53 per cent), due to ‘having most missed the distraction-free work environment and in-person formal collaboration with team mates’.^[16]

• Younger employees were keen to get back to the office: 66 per cent of 18 to 30-year-olds felt ‘enthusiastic’ about returning compared to only 47 per cent of 51 to 60-year-olds.^[17]

With respect to the survey results, Mattey concluded that ‘good people are going to be attracted to places that are going to adopt these new ways of working. We saw it already a bit with the tech sector. Those that don't invest in making flexible work really “work”, are going to struggle over time ... to be an employer of choice.’^[18]

CONCLUSION

Business leaders now have a better sense of what can and cannot be done outside of their companies’ traditional processes. They are beginning to appreciate the speed with which their organisations can evolve. In short, COVID-19 is escalating both the pace and scale of workplace innovation. Many are finding simpler, less expensive and faster ways to operate. All of this points to our innate ability to change.

There is no doubt that this has been an unexpected and challenging period of imposed change on the legal profession. How the profession proceeds after the pandemic subsides will be fascinating to monitor. Will the legal profession embrace the change and real opportunity to move away from prescribed approaches and standardised solutions? COVID-19 could be a catalyst to reinvent the future of work and create opportunities for the legal profession to look at things differently. Or will the profession revert to type, see pitfalls everywhere, and turn back to the tried and tested? We will have to wait and see.

Andrew McKenzie is a principal lawyer at Maurice Blackburn on the Sunshine Coast. He was admitted to practice in 1997 and predominantly practises in personal injury law. PHONE (07) 5430 8746 EMAIL amckenzie@mauriceblackburn.com.au.

^[1] H Trinca, ‘Returning to the office will bring new problems – and opportunities’, The Australian Business Review (online), 25 April 2020, <https://www.theaustralian.com.au/business/the-deal-magazine/returning-to-the-office-will-bring-new-problems-and-opportunities/news-story/83510905acc3c77e538604fe92db740c>.

^[2] Ibid.

^[3] Ibid, based on the comments of Jacob Varghese, CEO of Maurice Blackburn Lawyers.

^[4] Ibid.

^[5] Ibid.

^[6] Ibid.

^[7] J Derwin, ‘An office designer explains how workplaces will change after coronavirus – and, yes, hot desking is dead’, Business Insider Australia, 25 May 2020, <https://www.businessinsider.com.au/covid19-offices-australia-design-return-work-hot-desks-2020-5>.

^[8] Ibid.

^[9] Ibid.

^[10] NBN, ‘Australian COVID-19 behavioural change survey: 8 in 10 experiencing better work/life flexibility’ (Media release, 26 May 2020) <https://www.nbnco.com.au/content/dam/nbnco2/2020/documents/media-centre/behavioural-change-survey.pdf>.

^[11] Boston Consulting Group (BCG), Personalisation for your People: How COVID-19 is Reshaping the Race for Talent (Report, June 2020) <https://image-src.bcg.com/Images/ANZ-Personalisation-for-your-people_tcm9-251462.pdf>.

^[12] D Ziffer, ‘Most workers want “hybrid” jobs at the office ad at home after coronavirus, study finds’, ABC News (online), 23 June 2020, <https://www.abc.net.au/news/2020-06-23/most-workers-want-hybrid-of-home-and-office-post-coronavirus/12381318>.

^[13] See T Dalton, ‘Employment experts say over-45s face discrimination in Australian job market, workforce at risk of losing knowledge, experience’, ABC News (online), 1 May 2020, <https://www.abc.net.au/news/2020-05-01/mature-age-job-seekers-workplace-discrimination-jobs-online/12187272>.

^[14] BCG, above note 11, 7.

^[15] BCG, above note 11, 6.

^[16] BCG, above note 11, 9.

^[17] Ibid.

^[18] Ziffer, above note 12.