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Figures released in August 2023 from the Australian Bureau of Statistics show that 37% of employed Australians still work from home on a regular basis, a figure that is 5% higher than under pre-pandemic arrangements.[1] This figure sits more around 60% for those in professional roles.
However, as we have progressively returned to life post-pandemic, an increasing number of employers have mandated attendance in the workplace. In response to this, recent case law has tested the ‘right’ of employees to flexible working arrangements. Our team discuss these findings further below.
Last year saw the implementation of the Secure Jobs, Better Pay Act 2022 (Cth), which amended existing provisions of the Fair Work Act 2009 (Cth). These changes brought significant changes to the legislated entitlements for some employees to request flexible working arrangements.
The Fair Work Act states that employees who have been employed on a permanent basis for at least 12 months are entitled to request flexible working arrangements if they are:
Disputes that arise between the employer and employee in relation to this request are to be resolved under section 65B of the Fair Work Act, as discussed below.
While all modern awards include flexibility provisions to enable employers and their employees to agree to individual flexibility arrangements, there is currently no entrenched right to work from home.
In January 2024, the Fair Work Commission released a discussion paper regarding the work and care of employees that sought employer feedback by way of a survey. This Work and Care Survey included questions regarding working from home and other flexible work practices to assist the Commission in the consultation process and to promote discussion of work and care in the context of modern awards.
The findings of this survey were released on 31 May 2024 and demonstrated a strong demand in workforces for flexible working arrangements – in particular the ability to work from home. It was found that a vast majority of respondent workplaces implemented working‑from‑home arrangements post‑COVID. Further, working‑from‑home arrangements were being used as a retention strategy for smaller businesses.
As a result of the survey responses, the Commission is considering an investigation on potential variations to modern awards to include provisions for work from home arrangements.
Although the attitudes of employees appear largely in favour of work from home, recent case law has demonstrated that employers can still require employees to attend the workplace.
In this case, the employer (Maxxia), was the sole provider of salary packaging services for the South Australian Government. The employee (Mr Gregory) had a contract that required him to attend the office, however Maxxia allowed him to work remotely on a full-time basis, as he had done during the COVID-19 pandemic. Maxxia then introduced a hybrid working policy that required employees to work at least 40% of their hours in the office.
In response, Mr Gregory requested to work from home on a permanent basis, citing as his reasons that he:
In light of these reasons, Maxxia proposed a phased approach that would allow Mr Gregory to work in the office 20% of the time for one month, and then 40% thereafter (to align with the days on which he cared for his child). Mr Gregory rejected this offer and additional medial evidence was provided by his doctor to reinforce his request to work remotely full time.
Maxxia ultimately refused this request on reasonable business grounds as genuine efforts had been made to accommodate Mr Gregory’s circumstances.
In coming to this decision, Mr Gregory’s team leader considered:
1. the considerable penalties that Maxxia faced if its contractual obligations were not met (due to the high expectations of its client base)
2. the fact that Mr Gregory was failing to meet his daily productivity targets by a significant amount
3. the ability to observe and support Mr Gregory in person to assist in boosting his productivity
4. fairness to other workers, including maintaining consistency across the office
5. the fact that Mr Gregory’s mental health had taken a noticeable decline, and that his manager had concern for his ability to be supported remotely.
The Fair Work Commission ultimately found in favour of Maxxia and rejected Mr Gregory’s request to work remotely on a full time basis.
In coming to this decision, the Commission determined that Mr Gregory’s IBS condition was not a disability for the purposes of the Fair Work Act and did not trigger the entitlement to request flexible working arrangements. Additionally, although Mr Gregory’s care of a school aged child did trigger the entitlement provisions, the Commission noted that Maxxia had genuinely attempted to give Mr Gregory alternative arrangements as a primary caregiver (which were declined by Mr Gregory).
The Commission further noted that Maxxia had been reasonable in their rejection of the request due to the desirability for face-to-face contact with the team to occur.
In this case, the employee (Mr Ren) was a research scientist for the Bureau for Meteorology (BoM). During the COVID-19 pandemic, BoM had allowed employees to work remotely, including overseas, but had since ceased doing so. Mr Ren had been approved for a period of recreational leave in which he travelled to the United States. At the end of the period, Mr Ren failed to return onsite to BoM’s offices. Although he asserted that he was back in Australia, Mr Ren was unresponsive during work hours and failed to attend meetings.
BoM later learnt that Mr Ren had been logging into their IT systems from the USA. Having done this without permission, it caused a significant security risk to the organisation.
Although Mr Ren was subject to BoM’s policies in relation to remote work and access to BoM’s IT systems, he refused to provide evidence of his return to Australia. BoM consequentially terminated Mr Ren’s employment due to a breach of these policies that had caused a breakdown of trust between the employer and the employee. In response, Mr Ren brought an unfair dismissal claim against BoM.
The Commission ultimately upheld the dismissal, noting that it was not unjust, harsh or unreasonable, as Mr Ren had:
Employee requests to work remotely on a full-time basis are potentially unreasonable. Recent case law shows that employers can reasonably ask employees to work in the office in a variety of scenarios, including as a way to foster team relationships and meet the needs of the business.
Employers are encouraged to review their policies and ensure there is a clear process for remote work arrangements. Please contact a member of our team if you need assistance in reviewing your employment contracts, policies and procedures.
[1] Working from home remains popular but less than in 2021 | Australian Bureau of Statistics (abs.gov.au)
[2] FWA s 65(1A).
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.
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Cooper Grace Ward acknowledges and pays respect to the past, present and future Traditional Custodians and Elders of this nation and the continuation of cultural, spiritual and educational practices of Aboriginal and Torres Strait Islander peoples.
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