In recent years, the traditional 9-to-5 work model has undergone a significant transformation across Asia, with the rise of flexible work arrangements reshaping the way businesses operate and employees engage with their work. Flexible arrangements are becoming increasingly prevalent, driven by technological advancements, changing societal norms, and the evolving demands of the workforce. Taking root in the UK and some European nations, laws governing flexible work arrangements are advancing in Asia, driving employers to implement changes such as adjusting start and finish times, allowing split shifts or job sharing, or authorizing remote work. While some countries have adopted broad flexible work regulations, other countries have adopted or addressed flexible work with regard to remote work only. We set some of these out briefly below.

Legislative Frameworks

Australia: The Fair Work Act 2009 governs employment relations in Australia and includes provisions for flexible work arrangements. Employees with caregiving responsibilities, disabilities, or experiencing domestic violence have the right to request flexible working conditions. Employers are required to consider these requests in good faith and can refuse on reasonable business grounds only.

Malaysia: Malaysia's Employment Act 1955 regulates the employment relationship and does not specifically address flexible work arrangements. However, the Ministry of Human Resources, as recently as April 2024, encourages employers to adopt flexible work policies voluntarily. While there is no legal mandate requiring employers to allow flexible work requests, employers can negotiate flexible arrangements with employees, subject to mutual agreement, and must respond to written requests for variations in work hours, days or location.

Philippines: The Philippines does not have a general flexible work requirement, per se, but it has a law governing telecommuting and it has issued rules, as recently as September 16, 2022, that clarify telecommuting guidelines for employers. Among other things, employers that allow employees to telecommute should have a formal program, which includes voluntarily agreed-upon policies and guidelines. Government rules set out what should be incorporated into such a program, such as clear eligibility requirements, minimum technology requirements, emergency protocols for poor internet connection, duration of the authorization, etc.

Singapore: Effective December 1, 2024, employers will be required to consider requests for flexible work arrangements.  The Tripartite Alliance for Fair and Progressive Employment Practices (TAFEP) recently provided guidelines on flexible work arrangements. Employers are encouraged to offer flexible work options, such as telecommuting and flextime, to enhance work-life balance and productivity. However, there is no statutory requirement for employers to provide flexible work arrangements.

Thailand: Thailand does not have a flexible work law, per se, but effective April 1, 2023, the Labor Protection Act was amended to allow remote work. Remote work is not required, but if an employer and employee agree to remote work, there should be a written remote work agreement. Workers should have the right to refuse communication outside of work hours, and employees authorized to work remotely must have the same rights and entitlements as other workers, among other things.

What employers should be thinking about

Contractual Considerations: Contractual agreements can play a pivotal role in formalizing flexible work arrangements and clarifying the rights and obligations of both employers and employees. In fact, in some locations, such agreements are required – by law – as a part of the remote work or flexible work program. Clear and comprehensive employment contracts or agreements should outline the terms and conditions of flexible work, including agreed-upon working hours, location, duration, and any conditions or limitations associated with the arrangement. These agreements should also include provisions for dispute resolution, termination, and modification of the flexible work arrangement to mitigate potential conflicts.

Data Protection and Cybersecurity: With remote work – especially hybrid remote work schedules – becoming a normal part of many worksites, data protection and cybersecurity emerge as crucial concerns. Businesses must focus on safeguarding sensitive information, ensuring compliance with data privacy laws, and mitigating cybersecurity risks. This includes addressing concerns related to data security, confidentiality, and access controls in remote work environments.

Clear Business Policies: Instituting uniform policies regarding compensation, benefits, core days, core hours, and other fundamental aspects of flexible work arrangements is important to promote equity, transparency, and operational efficiency within the organization. By establishing clear guidelines and standards that apply consistently to all employees, regardless of their work schedule or location, employers can foster a sense of fairness and trust while mitigating potential conflicts or misunderstandings.

Workplace Health and Safety: Flexible work arrangements offer flexibility and convenience, which can support an employer’s efforts to remain competitive for talent. In fact, an employee’s health – or perhaps even the health of a family member – may be a basis on which an employee makes a request for flexible work.  Even so, among other things, such requests – such as a request to work remotely – can raise important questions about workplace health and safety. Employers must make themselves aware of their obligations to such employees. For example, is the remote worksite safe?  Has the employee requested – or does the worker need – ergonomic equipment? Does or should the employer’s insurance cover an injury at the remote worksite? Generally, employers must assess workplace health and safety risks associated with remote work and provide employees with necessary resources, equipment, and training to maintain a safe and healthy work environment. Protocols for reporting and addressing health and safety concerns, accidents, or incidents should be established to ensure the well-being of remote workers.

Intellectual Property Rights: Intellectual property rights can pose complex challenges in flexible work arrangements, particularly regarding ownership of work products created during the course of employment. Clear policies regarding intellectual property ownership, confidentiality agreements, and non-disclosure clauses are essential to protect proprietary information and mitigate the risk of disputes. Employers should also address any potential conflicts of interest or concerns regarding the use of company resources for personal projects.

Compliance with working time regulations: Employers should assess how they will manage and monitor compliance with working time regulations. Requests for flexible work – especially split scheduling and remote work, for example – should be granted with a clear understanding of the company’s strategy for compliance with applicable working time rules.  How will the employer ensure the worker is appropriately starting and ending the day on time?  If the worker works a split shift, how will the company address any night-shift premium pay triggers? Failure to adhere to working time regulations, including overtime, limitations on hours, rest days, and related matters, can result in liabilities and fines. Additionally, setting out and managing core working hours can be a practical issue to ensure that employee teams are able to confer and work seamlessly during critical workday periods.

Tax implications: Tax and employment benefits considerations come into play in flexible work arrangements. Employers must consider the tax implications, as well as any adjustments to employment benefits resulting from flexible work arrangements. Clear communication and transparency regarding changes to employment benefits are essential to maintain trust and compliance with legal requirements.

Reimbursements: Often a critical question for employers is whether the requested flexible work structure will trigger additional costs. While most flexible / remote work schemes allow the employer to consider – and even reject – a request for flexible work that creates unreasonable costs, this is not always an easy line to determine.  For example, some locations require employers to bear all costs associated with a position. This requirement has been interpreted to mean providing reimbursement for the costs of remote work, which may include new employee equipment, electricity at the employee’s home, or other such costs. When authorizing flexible work, costs usually play a critical role for accepting or rejecting the request. 

Employee Welfare: While flexible work arrangements offer greater autonomy and work-life balance for employees, it is essential to safeguard their rights and welfare. Promoting inclusivity, diversity, and equitable access to flexible work opportunities is integral to fostering a supportive and inclusive workplace culture.

Conclusion

While remote work offers potential benefits such as increased flexibility and reduced overhead costs, it also poses challenges in managing productivity, cybersecurity, and data protection. Navigating the legal landscape of flexible work arrangements requires careful consideration of various legal considerations, including employment laws, contractual agreements, data protection, health and safety regulations, intellectual property rights, compliance with working time regulations, tax and employment benefits, and dispute resolution mechanisms. By addressing these considerations proactively and implementing robust policies and procedures, employers can mitigate legal risks, foster a positive work environment, and maximize the benefits of flexible work arrangements for all stakeholders involved.