Here’s what the law says.
In Australia, close to 90% of employers have implemented mandatory in-office days, according to a survey of 300 hiring managers commissioned by recruitment agency Robert Half.
The survey shows 19% insisting on five days a week, 28% on four days, and 26% on three days. Almost a third of respondents reported at least one employee quitting in response.
Particularly for parents and younger workers, working from home is not something they will readily give up.
Which raises the question: can an employer, having first directed you to work from home, now turn around and mandate you don’t?
The short answer is yes, they can in many case….though 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 you are employed permanently, as a casual or on a short-term contract, you are required to follow “lawful and reasonable “directions from your 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 be lawful and reasonable except in extreme cases-for example, where it is contrary to a government directive or another law. If you can perform your role at home and have a legitimate reason to do so-such as an underlying health issue-you may have grounds to argue a directive to return to the office is not reasonable.
But 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.
Is consultation required?
If your work is covered by an award or enterprise agreement, you can collectively assert your 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.
Even though the employer ultimately doesn’t need consent, the consultation still needs to be genuine and properly consider employees views, following the processes set down in the applicable award or agreement.
What about flexible work arrangements?
If your award, enterprise agreement or employment contract contains “workplace flexibility” provisions, you 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 pregnant.
- Are experiencing family or domestic violence or caring or supporting an immediate family or household member experiencing family or domestic violence.
Does that apply to casual work?
Casual employees 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.
Reasonable adjustments for employees
The right of review for flexible work arrangement requests, though limited to certain employee categories, could well become a hotly contested area.
If an organisation mandates their workers return to the workplace, the employer needs to provide clear guidelines. If an employee seeks a flexible work arrangement, the employer needs to actively engage with them and give them opportunities to provide supporting evidence regarding any special circumstances.
That way, they can accommodate employees-so far as is practicable-and if required, make reasonable adjustments. If you’re an employee wanting to request flexible working arrangements, such as working from home, or an employer wondering how to handle such requests, you can read more at the Fair Work Commission.