Impact of Singapore’s Tripartite Guidelines on Flexible Work Arrangement Requests on Work From Home Arrangements
Other Author Shaun Lye, intern of PKWN
For the past few years, working from home has become the new norm for employers in Singapore. It has been a mixed experience for employers and employees alike. Social media sometimes refer to this as the 'Boomers vs Gen Z' phenomenon.
The Singapore government has played its part in encouraging flexible work arrangements while not making it mandatory for employers to implement. In our view, this is a great balance. It recognises that there can be no 'one size fits all' approach and allows employers to make their own decisions. In this way, the legal position is really no different from what it was before COVID. The main difference currently is that we have the Tripartite Guidelines on Flexible Work Arrangement Request (the “Guidelines”) which comes into effect on 1 December 2024.
These Guidelines replace the existing Tripartite Advisory on Flexible Work Arrangements issued in 2014 as well as the Tripartite Standard on Flexible Work Arrangements introduced in 2017.
Practically speaking, Guidelines issued by the Ministry of Manpower have the effect of law. Purists will say no, because only the Parliament can pass a new law. Realists will say that the Guidelines need to be complied with, otherwise there will be serious consequences for the non-compliant. That’s no different from the law.
The Guidelines introduce a procedure for formally requesting flexible work arrangements, and what can be requested. They also specify the thinking points for the employer to fairly consider such requests. They set out a time limit for the employer to respond (2 months). These are summarised in the Schedule to this article.
But the Guidelines do not, under any circumstances, try to make working from home an entitlement of any employee. Under Singapore law, as it currently stands (and including any Guidelines!), no employee has the right to insist on working from home. No employee can work from home without the prior consent of the employer. This consent can be given generally, with or without conditions. It can be revoked at any time without giving reasons. If employees work from home without the prior consent of the employer, then they are absent without official leave or, in modern parlance, “AWOL”.
Under Section 13(2) of the Employment Act 1968, an employee is deemed to have broken their contract of service if they are absent from work for more than two consecutive days without prior leave from the employer and either has no reasonable excuse for the absence or fails to inform or attempt to inform the employer of the excuse for the absence.
Absent from work is understood to mean not present in the office. Is working from home a reasonable excuse for absence? Now that we have these Guidelines and the Advisory on Flexible Work Arrangements, arguably not. If working from home without permission is a reasonable excuse for not being in the office, we would not need any guidelines or advisory to follow as these would be superfluous.
To summarise, any employer in Singapore who wants to revoke all work-from-home arrangements and get their employees back to the office every working day can do so at any time. Any employer who wants to implement a mandatory work-from-home arrangement for their employees can do so anytime and on such terms and conditions as they deem fit.
Schedule: FWAs
1. How do employees request for a flexible work arrangement?
There should be a form to fill in, if the employer has a proper written flexible work arrangement procedure. If not, then the Guidelines on Flexible Work Arrangements have a form that the employee can use. Requests must be in writing.
2. What can employees ask for?
Flexi-place (e.g., telecommuting, work-from-home);
Flexi-time (e.g., staggered work hours, compressed work schedules); and
Flexi-load (e.g., job sharing, part-time work).
3. What does the employer have to consider when looking at a request?
- Will the request affect the business or the employee’s job performance?
- Are there ways to accommodate the request? This could include reviewing work processes or reassigning work across team members to ensure minimal impact to the organisation's productivity or output.
4. Does the employer have to explain a rejection of request? If so, what can or cannot be said?
Employers are entitled to reject FWA requests. Rejections must explain why. The explanation must be acceptable.
What is acceptable?
Reasonable business grounds (e.g., nature of the job role, increase in costs or decrease in productivity and/or output)
What is not acceptable?
Personal bias against FWAs (e.g., preference for supervising employees in direct sight, management not believing in FWAs, or existing customs or traditions of the organisation)
If an FWA request is rejected, the employer is encouraged to consider alternatives with the employee(s).
While there are currently no formal procedures to resolve employer-employee disputes stemming from FWA requests, attention should be paid to the Employment Claims Tribunal potentially encompassing FWA-related disputes in the future.
In the meantime, employees who feel that their request has been wrongfully rejected can issue a complaint to the Tripartite Alliance for Fair & Progressive Employment Practices (TAFEP) or the Ministry of Manpower (MOM). If the employer is found to have wrongfully rejected the request in accordance with the Guidelines, they may be required to attend corrective workshops or be given a warning by the MOM.
Employers must take note of and address potential challenges arising from FWAs. For example, a company should have procedures in place to terminate or suspend FWAs. In cases where employees' flexi-working arrangements extend outside Singapore, employers must be aware of the possible legal and tax repercussions.
