Best Practices of Flexible Work Arrangements (FWA)

Policy Insights: Best Practices of Flexible Work Arrangements (FWA)

INTRODUCTION

The Movement Control Order (MCO) imposed by the Malaysian government in March 2020 was intended to reduce the spread of the COVID-19 virus — it led to drastic changes to the working arrangements in Malaysia. Many organisations have explored the possibility of temporarily working from home for the first time in a situation of urgency on a restricted basis. As working from home became the new norm for many organisations, it presented unique challenges for Malaysian employers and employees. Therefore the National Human Resource Centre (NHRC) stepped forward to carry out a study on Policy Planning for Flexible Working Arrangements (FWA) in Malaysia.

Based on the primary data collection, it was identified that FWA is currently organised on a business level under company policy as stated in the Employment Act 1955 (Amendment 2012). However, there is no standard guidelines or references for employers to practice FWA at their workplace. This is because FWAs are alternative arrangements from traditional working setups that include changes in where, how, and when an employee conducts their work. As such, it was generally agreed during the Focus Group Discussion session organised by HRD Corp with industry players that there should be a general guideline as a reference to apply FWA effectively in organisations.

OBJECTIVES

The objective of the guideline is:

To assist employers in managing FWA effectively at the workplace.
To increase employability by attracting and retaining talents through a supportive working environment.
To encourage a conducive working environment and ensure effective business operations.
To focus on occupational safety and health for the FWA.

Flexible Working Arrangements (FWA)

Flexi-Hours / Days

Remote Jobs

Work From Home

Flexi-Hours / Days

Remote Jobs

Work From Home

BEST PRACTICES

1

Administration

a) Criteria

Who can apply for FWA?

Anyone can request flexibility. It is at the discretion of the employer to set the criteria for FWA applications. An employer may decide the flexibility entitlement based on an employee’s duration of continuous employment with the employer. For example, employees who have worked with the employer for at least 12 months can be considered for an FWA entitlement.

The request for flexible working arrangements may be due to:

Disabilities
Chronic illnesses
Family responsibilities

***Organisations may decide on the criteria to request for a flexibility.

b) Respond to Employees

- Written Notice or Reply
  - An employer may decide for employees to submit their request for flexible working arrangements either in writing, by email, or via instant messaging.
- Duration to Respond
  - An employer is encouraged to respond to FWA requests from employees in less than 30 days, preferably within 14 days. This will allow the employer to make necessary work adjustments and liaise internally.
- Responding to a Request
  - An employer may need to explain to employees the changes to working arrangements before reaching an agreement. This can be done in a formal document or an email. Below are the suggested key areas to include:

The new working arrangements for the employee such as changes to working hours, working days, or alternate days.
Highlighting the duration of FWA (ongoing or for a fixed period).
Communicating performance management to employees such as being more result oriented.
Communicating employer’s expectations to employees.

***Organisations may decide on performance and monitoring management with employee.

c) Withdrawal of the Approval

An employer is encouraged to provide reasons if the request is refused. An employer must justify denying a request.

Reasonable business grounds for refusing a request could include:

The nature of business
Affecting employee’s job performance
Declining in productivity
Additional company costs

Legal Requirements

a) Employer’s Prerogative / Responsibilities

Approval of FWA requests is subject to an employer’s prerogative.
Employers are also encouraged to have a written agreement between the two parties for any changes to employment terms. An employer may need to comply with the Employment Act 1955 and Industrial Act 1967 regarding employee entitlement.
Employers may deny employee’s request based on specific reasons such as:

- Affecting job performance
- Additional company costs
- Nature of business/job/industry
- Company does not practise FWA

Employers are obliged to consider the employee’s request and must be able to think objectively to provide a reply based on clear judgment.
Employers are obliged to protect employee’s salary, benefits and allowances.
Employees have the rights for promotion and increment (relating to fair treatment).
Employer must not deny an employee’s rights and any changes to employment terms should be a written agreement between two parties.

b) Employee’s Responsibilities

Employee may request for FWA if it is being practised in the company.
Employee must fulfil their obligation to complete given tasks, maintaining performance, quality, and quantity according to their agreed KPI with their employer, reporting of any forms.
Employee shall receive training, benefits, allowances and an opportunity for promotion based on performance, similar to other employees who did not request for FWA.

c) Privacy Obligations: Personal Data Protection Act (Standard of Business Conduct)

Employers and employees shall have preliminary knowledge of Personal Data Protection Act (PDPA) especially involving storing, collecting, using, and disclosing personal information.
Employers shall also inform remote employees of all relevant laws and company rules and regulations on data protection via a non-disclosure agreement.
For best practice, employers shall also outline what can and cannot be monitored when supervising an employee who is practising FWA such as:
Requesting remote employees to turn on the camera while on a video call.
Requesting remote employees to dress formally while working remotely.
Both parties must have preliminary knowledge of PDPA especially involving storing, collecting, using and disclosing personal information.
Employers shall inform remote employees of all relevant laws and company rules and regulations on data protection via a non-disclosure agreement.

Employers shall outline what can and cannot be monitored when supervising employees who are practising FWA.

d) Protections Against Reprisals

An employee cannot be dismissed, demoted, threatened, or suspended when he/she requests for FWA.

2

3

Performance Management

Employers and employees must agree on a reporting method. An employer is encouraged to invest in technology that may help to manage employees who are working remotely.

In most cases, employers may highlight reporting methods and discuss performance management and any changes made to employment contracts before employees embark on FWA.

Employer and employee should agree on a reporting method.
Employers may want to invest in technology to manage employees who are working remotely.

Employee Engagement

a) Communication Hub

Employers shall create a supportive culture that allows employees to request for FWA.
Employers should communicate expectations and show trust to those who are working remotely.
Employers may create more channels and utilise platforms for employees to raise their concerns or grievances.
Employers may organise online programmes or training beyond the scope of work.

b) Engagement Activities

Employers shall include remote employees in engagement activities to create a sense of belonging in the organisation.
Employers shall provide training to managers on the organisation’s FWA ground rules and encourage employees to discuss issues with their supervisors.
Activities include coffee sessions with the Head of Department/ Division/Top Management, conducting webinar sessions, and online fitness activities.

4

5

Safety & Health

a) Risks Identification/Control Measurement

Employees must be able to identify risk and control measurement while practicing FWA.
Employers must comply with OSH Act 1994 and ensure it for all employees, be it those working in the workplace or remotely. The Act aims to protect employees from health and safety risks which include both physical and mental health.
Employers may create awareness for mental health in the workplace and guidelines on ergonomics as stipulated by the Department of Occupational Safety & Health (DOSH).
Employers may choose to visit the employee workstation at home (if necessary).

b) Training or Awareness Programmes

Organisations shall provide awareness programmes relating to occupational safety and health from time to time.
Organisations shall consider providing free and confidential counselling and support to employees (EAP).

Grievances Procedures

a) Flow of Complaints

Employers shall adapt best practices by the industry or based on the existing practices of the company.
Employers may provide a special platform or hotline for the employees to submit their grievances.

b) Procedure

Step 1

If an employee is not satisfied with their immediate supervisor/officer, they may approach their manager, or if necessary, a union branch official. If the matter is not resolved within five working days, they may express their grievance in writing either directly or through a Union Personnel Manager.

Step 2

If the matter is still not resolved after seven working days, the Union branch shall make representation in writing to the General Manager or his appointed Deputy. The General Manager or his appointed Deputy will then arrange a meeting to be held within ten working days of the receipt of the Union letter.

Step 3

If the matter is still not resolved after the meeting, which both parties may agree to hold, the Union may make formal representation to the company in writing through the General Secretary within ten working days of the date of the final meeting at this level.

On receipt of the Union’s letter, the Company will offer arrangements for a meeting between the Company and the Union, which will be attended by senior officials of the Company and the Union. Such a meeting is to be held within ten working days of the receipt of the Union’s letter.

Step 4

If the matter remains unresolved after this meeting or any further meeting which both parties agree should be held, both parties can agree to refer the dispute for settlement under the provisions of the Industrial Relations Act.

6

7

Disciplinary Procedure

a) Types of Misconduct

Companies are advised to determine the types of misconduct and to communicate it with employees.

Examples of major misconduct:
Insubordination
Fraud
Bullying
Sexual harassment
Examples of minor misconduct:
Occasional tardiness.
Abusive language (that are not sexual in nature).
Occasionally not following company policy.
Causing distress to other employees or interrupting their tasks.

b) Disciplinary Action

Action will be taken based on the severity of the case.
For minor misconduct:
The accused employee shall be issued a show cause letter followed by a written or verbal warning depending on the explanation given by the employee.
For any major misconduct:
It is advisable for the employer to issue a show cause letter and demand for an explanation regarding the misconduct and why disciplinary should not be taken against the employee.
Notice of Inquiry shall be issued if the response is not acceptable, unclear, or just admit part of the charges in the show cause letter.

c) Domestic Inquiry

Domestic Inquiry is carried out to allow the accused employee to defend him/herself.
The basic Principle of Natural Justice has to be observed throughout the process.
At the end of the Domestic Inquiry, the panel should be able to conclude and submit the report to the Management.
Disciplinary action may be taken against the accused employee based on the report submitted by the panel of inquiry.

Reviewing Committee of Guidelines on FWA

National Human Resource Centre (NHRC)
Department of Labour (Jabatan Tenaga Kerja)=
Department of Occupational Safety and Health (Jabatan Keselamatan dan Kesihatan Pekerjaan)
Department of Industrial Relations (Jabatan Perhubungan Perusahaan Malaysia)
HRD Corp’s Chief Strategy and Programmes Officer
HRD Corp’s Chief Operations Officer

8 CONCLUSION

The employer should develop an internal policy for FWA based on the given guidelines before its implementation.

INTRODUCTION

OBJECTIVES

Flexible Working Arrangements (FWA)

BEST PRACTICES

1

2

3

4

5

6

7

8

CONCLUSION

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