[Australia] Can employers prevent people working from home?

In Australia, close to 90 per cent of employers have implemented mandatory in-office days, according to a new survey.  Almost a third of respondents stated that at least one employee had quit in response, ABC News reports.

The survey of 300 hiring managers commissioned by recruitment agency Robert Half reveals that 19 per cent insist on five days a week, 28 per cent on four days, and 26 per cent on three days.

Zoom reportedly told its staff to return to the office for at least two days a week, if their commute is no more than 80 kilometres. The mandate is part of a trend of employers winding back the work-from-home flexibility that enabled most to continue operating through the pandemic in 2020 and 2021.

For parents and younger workers, in particular, working from home is not an arrangement they will easily give up.

This raises the question: Can an employer, having first directed someone to work from home, change this position and mandate that they can’t?

In many cases, the short answer is yes, however, some people have a stronger case to argue for flexible work and correct procedures must be followed.

Is it a 'lawful and reasonable' direction?

Whether employed permanently, as a casual or on a short-term contract, individuals are required to follow "lawful and reasonable" directions from their employer. Even if this isn't stated specifically anywhere, Australian courts have ruled this requirement is "implied" in every employment contract.

A direction to return to the workplace will reportedly be lawful and reasonable except in extreme cases for example, where it is contrary to a government directive or another law.

If someone can perform their role at home and has a legitimate reason to do so - such as an underlying health issue - they may have grounds to argue a directive to return to the office is not reasonable.

However, a detailed and considered plan requiring employees to return to the workplace safely will be lawful and reasonable. Failing to comply with this direction may be a valid reason for disciplinary action, including dismissal.

Consultation

For work covered by an award or enterprise agreement, employees can collectively assert their right to be consulted, on the basis that a return-to-work order constitutes a "major workplace change".

The Fair Work Ombudsman says consultation requires giving notice, discussing the proposed changes, providing written information and giving "prompt consideration" to any matters raised by employees and their representatives.

Despite the employer ultimately not needing consent, the consultation still needs to be genuine and properly consider employees' views, following the processes set down in the applicable award or agreement.

This is reportedly the issue in the dispute over the Commonwealth Bank of Australia directing employees to be in the office 50 per cent of the time. The Finance Sector Union is challenging this in the Fair Work Commission, arguing the bank breached its obligation to consult. Therefore, even if the commission agrees, the policy won't necessarily change.

Flexible work arrangements

If a worker’s award, enterprise agreement or employment contract contains "workplace flexibility" provisions, they may have rights to work from home or to make a request.

In addition, the national employment standards under the Fair Work Act give employees the right to request "flexible work arrangements" if they've been with the employer for at least 12 months, and:

• are a parent or carer of a child of school age or younger
• a carer
• have a disability
• are at least 55 years of age
• are pregnant
• are experiencing family or domestic violence, or caring or supporting an immediate family or household member experiencing family or domestic violence.

Casual employees reportedly have similar rights if they have been working regularly and systematically for at least 12 months and have a reasonable expectation of continued work on the same basis.

Employers who receive a request for flexible working arrangements must respond in writing within 21 days.

An employer can only refuse a request on "reasonable business grounds", and where they have genuinely tried to agree to alternative arrangements to accommodate the employee's circumstances, and have considered the consequences for any refusal.

Reasonable business grounds include such factors as the size and nature of the business. These include the request being too costly and having a significant adverse effect on efficiency, productivity or customer service.

As of June 6, 2023, employees have had a right of appeal to the Fair Work Commission, which has new, more expansive powers to resolve such disputes by mediation or conciliation, by making a recommendation, and, if required, by arbitration.

Reasonable adjustments for employees

The right of review for flexible work arrangement requests, while limited to certain employee categories, could reportedly become a contentious area.

If an organisation mandates their workers return to the workplace - exclusively or in part - the employer must provide clear guidelines. The "humane way" to introduce such a policy (regardless of any legal requirement) is to consult with employees about the change.

If an employee seeks a flexible work arrangement, the employer reportedly needs to actively engage with them and give them opportunities to provide supporting evidence regarding any special circumstances. Allowing them to accommodate employees - as far as is practicable - and if required, make reasonable adjustments.

In sectors with persistent labour shortages, employees will reportedly have more leverage to have their views heard and negotiate and, in some cases, even request a review.

Employees wanting to request flexible working arrangements, such as working from home, or an employer wondering how to handle these requests, can read more at the Fair Work Ombudsman.

Source: ABC News

(Links via original reporting)

In Australia, close to 90 per cent of employers have implemented mandatory in-office days, according to a new survey.  Almost a third of respondents stated that at least one employee had quit in response, ABC News reports.

The survey of 300 hiring managers commissioned by recruitment agency Robert Half reveals that 19 per cent insist on five days a week, 28 per cent on four days, and 26 per cent on three days.

Zoom reportedly told its staff to return to the office for at least two days a week, if their commute is no more than 80 kilometres. The mandate is part of a trend of employers winding back the work-from-home flexibility that enabled most to continue operating through the pandemic in 2020 and 2021.

For parents and younger workers, in particular, working from home is not an arrangement they will easily give up.

This raises the question: Can an employer, having first directed someone to work from home, change this position and mandate that they can’t?

In many cases, the short answer is yes, however, some people have a stronger case to argue for flexible work and correct procedures must be followed.

Is it a 'lawful and reasonable' direction?

Whether employed permanently, as a casual or on a short-term contract, individuals are required to follow "lawful and reasonable" directions from their employer. Even if this isn't stated specifically anywhere, Australian courts have ruled this requirement is "implied" in every employment contract.

A direction to return to the workplace will reportedly be lawful and reasonable except in extreme cases for example, where it is contrary to a government directive or another law.

If someone can perform their role at home and has a legitimate reason to do so - such as an underlying health issue - they may have grounds to argue a directive to return to the office is not reasonable.

However, a detailed and considered plan requiring employees to return to the workplace safely will be lawful and reasonable. Failing to comply with this direction may be a valid reason for disciplinary action, including dismissal.

Consultation

For work covered by an award or enterprise agreement, employees can collectively assert their right to be consulted, on the basis that a return-to-work order constitutes a "major workplace change".

The Fair Work Ombudsman says consultation requires giving notice, discussing the proposed changes, providing written information and giving "prompt consideration" to any matters raised by employees and their representatives.

Despite the employer ultimately not needing consent, the consultation still needs to be genuine and properly consider employees' views, following the processes set down in the applicable award or agreement.

This is reportedly the issue in the dispute over the Commonwealth Bank of Australia directing employees to be in the office 50 per cent of the time. The Finance Sector Union is challenging this in the Fair Work Commission, arguing the bank breached its obligation to consult. Therefore, even if the commission agrees, the policy won't necessarily change.

Flexible work arrangements

If a worker’s award, enterprise agreement or employment contract contains "workplace flexibility" provisions, they may have rights to work from home or to make a request.

In addition, the national employment standards under the Fair Work Act give employees the right to request "flexible work arrangements" if they've been with the employer for at least 12 months, and:

• are a parent or carer of a child of school age or younger
• a carer
• have a disability
• are at least 55 years of age
• are pregnant
• are experiencing family or domestic violence, or caring or supporting an immediate family or household member experiencing family or domestic violence.

Casual employees reportedly have similar rights if they have been working regularly and systematically for at least 12 months and have a reasonable expectation of continued work on the same basis.

Employers who receive a request for flexible working arrangements must respond in writing within 21 days.

An employer can only refuse a request on "reasonable business grounds", and where they have genuinely tried to agree to alternative arrangements to accommodate the employee's circumstances, and have considered the consequences for any refusal.

Reasonable business grounds include such factors as the size and nature of the business. These include the request being too costly and having a significant adverse effect on efficiency, productivity or customer service.

As of June 6, 2023, employees have had a right of appeal to the Fair Work Commission, which has new, more expansive powers to resolve such disputes by mediation or conciliation, by making a recommendation, and, if required, by arbitration.

Reasonable adjustments for employees

The right of review for flexible work arrangement requests, while limited to certain employee categories, could reportedly become a contentious area.

If an organisation mandates their workers return to the workplace - exclusively or in part - the employer must provide clear guidelines. The "humane way" to introduce such a policy (regardless of any legal requirement) is to consult with employees about the change.

If an employee seeks a flexible work arrangement, the employer reportedly needs to actively engage with them and give them opportunities to provide supporting evidence regarding any special circumstances. Allowing them to accommodate employees - as far as is practicable - and if required, make reasonable adjustments.

In sectors with persistent labour shortages, employees will reportedly have more leverage to have their views heard and negotiate and, in some cases, even request a review.

Employees wanting to request flexible working arrangements, such as working from home, or an employer wondering how to handle these requests, can read more at the Fair Work Ombudsman.

Source: ABC News

(Links via original reporting)