Co-authored by Lara So and Jason Vo
COVID-19 forced workplaces to implement remote working arrangements. Now operating in a post-pandemic context, many workplaces have implemented a hybrid approach to work, allowing their employees to work from both home and the office.
In this article, we consider how employers should navigate the implementation of flexible working practices to ensure operational efficiency and employee satisfaction.
Can an employer request employees to return to the office?
Employees currently working remotely may be directed to return to working at the office, whether on a full-time basis or only some days in the office, if the request is reasonable and lawful. It may be reasonable for an employer to request a return to the office where the employment contract stipulates that the office is the employee’s place of work. Any such request should provide the employee with sufficient notice to allow them to make any required adjustments.
However, an employer should also keep in mind that an employee may be eligible to request a flexible work arrangement in accordance with recent changes under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. This includes an option to request working from home arrangements. If a request is made, the employer is required to provide a written response within 21-days, stating whether the request is refused or allowed. The employer may only refuse a request on reasonable business grounds. A refusal decision must include the reasons for refusing the request. Reasonable business grounds may include that the new working arrangements are too costly, would result in a significant loss in efficiency or productivity or be likely to have a significant negative impact on customer service. Any dispute could also be referred to the Fair Work Commission for resolution.
Individual Flexibility Arrangements
Alternatively, an employer and employee can enter into an Individual Flexibility Arrangement (IFA) as a way to implement flexible work arrangements. An IFA is an agreement that outlines the agreed terms and conditions of employment. The agreement can vary certain clauses of an employee’s award, contract or enterprise agreement. Notably, the employer must ensure that the employee is overall better off with the IFA than without it.
For employees who are covered by a Modern Award, employers are obliged to consult with their employees regarding major changes in the workplace. A direction to employees to return to the office may be considered a major workplace change.
In any case, it is prudent for an employer to consult with their employees before implementing any workplace changes such a major amendment to a working from home policy. Employers should have an open discussion with employees about any proposed workplace changes, ascertain their views and take them into consideration.
Consulting employees provides them with the opportunity to have a meaningful role in the decision-making process. Having open discussions and consulting employees could reduce uncertainty or anxiety, meaning employees are more likely to be open to accepting the employer’s request to return to the office.
Working from home policies
It is important for employers to take the time to consider their current workplace policies, including whether these policies cover working from home arrangements.
If there is no adequate policy in place, employers should either implement a working from home policy or amend their existing employee handbook to cover remote working arrangements. Such a policy should include consideration of adequate supervision and safe working practices whilst working from home.
With respect to safe working practices, all employers have a duty to ensure the health and safety of their employees. This extends to employees working from home. Safe practices include ensuring employees are adequately supervised, are not working unreasonably excessive hours at home and the ergonomics of an employee’s home workstation. Employers should also consider that their employees have adequate mental health support while working at home and are not subject to inappropriate workplace conduct (for example inappropriate workplace messaging after hours or sexually harassing text messages during and after work). While remote working may allow greater flexibility to employees, they are still required to comply with appropriate workplace conduct policies and sexual harassment policies to ensure a safe workplace.
If you would like assistance with implementing a working from home policy or reviewing an existing workplace policy, or with implementing a major workplace change, please contact Coleman Greig’s Employment Law team.
Coleman Greig Lawyers provides this material as general information only in summary form on legal topics current at the time of first publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters.