And as new case law develops and lots of discussions happen around what constitutes reasonable business grounds to refuse flexible work requests, there are a number of key lessons legal leaders can glean from the current market.

“In terms of the case law that’s developing, there’s a lot around the flexible work requests that are being made by employees. There is now an obligation that employees and employers have conversations about these requests before they are denied, and they can be denied on reasonable business grounds. So, we’re starting to see some of the law emerging in relation to what reasonable business grounds look like, and it is a bit of a patchwork in that sometimes it’s in favour of employers, sometimes it’s in favour of the employees,” Calderone said.

“What I’m seeing is an increased tendency of employers to accommodate requests because they don’t want the Fair Work Commission scrutinising whether or not they have reasonable business grounds for a particular employee to decline a request, particularly where there are many others watching from the sidelines, and likewise will be learning lessons.”

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However, these flexible work requests made under the Fair Work Commission are limited to certain categories of people, for example, those in carer positions or older than 55. Employees also need to have been with their organisation for at least a year.

“Not everyone gets through the gate for flexible work requests as a matter of law. So, really, those policy provisions in terms of flexible and hybrid working, where they’re more of a catch-all. And I do maintain, as I always have, that if only certain categories of workers are working flexibly, then that is where we’re more likely to have the unintended consequences on them for doing so,” Calderone explained.

“Whereas if everyone has access to that indiscriminately, and frankly, it’s good for people’s wellbeing, perhaps, to play sport or have their yoga program, or have their mental health recovery day from home. I think that’s more likely to have a better impact on not only the productivity of the workforce in terms of the balance that is struck but also the sustainability of our professionals in particular. Given how intense the legal environment is and the fact that it is very much a marathon, not a sprint.”

Particularly as there is still a “war for talent” in the profession, more firms are likely to do what they have to in order to “attract, engage and retain a highly skilled, talented workforce that is very much in demand”, added Calderone.

“We’ve had agile working from well before the pandemic, so I think it’s been approaching six years now. So, there’s been reinventions of it over the years. And obviously the pandemic, we were almost exclusively working from home, and then we had a 50-50 split in terms of work from home and work in the office. And that has been relaxed in more recent times or in the last year, I think, to not be so prescriptive. So, it really does depend on the work our people need to do,” she emphasised.

“I think we are still seeing many [law grads] go into the office, and that’s a function of the social interaction. They want their living arrangements at home. I think they still take the days at home, but we’re certainly not seeing the autonomy that we’ve given them. There is still plenty of engagement and activity in the office. And I suppose it’s on us to ensure that we’re creating environments and engaged and happy workplaces where people want to show up.”

It’s also, however, difficult for firms to have “blanket rules”, admitted Calderone, who added that for Hall & Wilcox, which has over 1,000 people, it’s difficult to say that something that is necessary for one team is the same for another.

“There will be teams that are litigation teams that are involved in injunction proceedings all the time, that may necessitate more time in the office, and there will be others that perhaps are just that their work that rarely requires them to be in the office. I think it’s important for us to be in the office in terms of connecting with our peers and having that mentoring and support that’s required at a face-to-face level from time to time.

“But what that looks like and what that needs to be, I think, is best delivered on a team-by-team basis. And while the firm can certainly put in some parameters and rules and policies in order to effectively deliver on that, I really do think it’s the humans around the table in the team that need to work it out, which does put the onus on leaders to really have those conversations,” she said.

“And then, I suppose from a firm perspective, what they need to be doing is having some oversight around that so that you don’t then develop sort of subcultures where you have some groups that are working entirely flexibly and others that are not working flexibly just because of the personal preference of the leader. It really does need to be around what is required for that team from a service delivery and a work point of view.”

Moreover, these kinds of conversations should be high on the priority list – as ways of working will always be a “very important consideration” for partners.

“Frankly, we are people business. We rely on people for our output and our service delivery. And there is a real risk that we will lose good people and talent if we don’t at least have these conversations and try to accommodate these requests. But there are certainly pressures beyond. From my client base point of view, the pressures on Australian businesses at the moment are really quite extraordinary. And they are more frustrated and more burdened by the competing responsibilities than I’ve ever seen them before. It certainly would be naive for us to operate in a bubble as lawyers and think we’re immune to these things,” Calderone concluded.

“I’m an advocate for flexibility and DNI, and I really do believe in creating inclusive workplaces and ones that our people can thrive in, that are healthy. But at the same time, equally, we need to be cognisant of the pressures our clients are under and make sure we maintain service delivery, and we maintain quality standards and that we continue to be accessible to the extent reasonably necessary.

“We can’t let them take it to a level where it becomes unhealthy for our people. But we do have organisations that are under pressure and in an economy that is under pressure, and we can’t let our standards drop because we’re working flexibly, and I honestly don’t believe we need to. It can be done.”

The transcript of this podcast episode was slightly edited for publishing purposes. To listen to the full conversation with Fay Calderone, click below: