Monday, 28 August 2023

Is Working from Home a Workplace Right?

Is working from home a legal right? Working remotely has become increasingly common and normalised post pandemic, and it can be a misconception that working from home is an automatic entitlement and a workplace right.

However, a recent court ruling has confirmed that an employee does not have a “general right or entitlement to provide their services from home at their election“.

Work Location

Where an employer has a physical workplace, it is generally reasonable for the employer to require that employees perform work from its workplace, especially where the employee is unable to perform their work from any other location, including their home. This is clear-cut in certain industries such as in retail, hospitality, health, warehousing, construction and other service-based industries where employees need to be physically at the workplace to perform their duties.

During the pandemic, many employers were required to be agile and pivot to working from home where possible given pandemic related lock downs and restrictions. As a result, many employees (and employers) have become accustomed to the benefits that working from home can bring.

However, it is important to recognise that there is no general right to working from home. Unless of course this is a requirement of the role the employee performs, or a term of their employment contract or relevant industrial instrument. In some cases, employees can request to work from home, which is outlined in more detail below.

Flexible Working Arrangements

Under the Fair Work Act (Cth) 2009 (Act), employees with at least 12 months service (including some casuals) are eligible to request flexible working arrangements (such as working from home) if they:

  • are pregnant;
  • are the parent, or have responsibility for the care, of a child who is school aged or younger;
  • are a carer (within the meaning of the Carer Recognition Act 2010);
  • have a disability;
  • are 55 or older;
  • are experiencing family and domestic violence; and/or
  • provide care or support to an immediate family or household member who is experiencing family and domestic violence.

Examples of flexible working arrangements may include changes to an employee’s:

  • hours of work such as changes to start and finish times;
  • patterns of work, such as split shifts or job sharing; and
  • locations of work, including working from home.

In light of the above, working from home is not an automatic entitlement under the Act, but rather eligible employees have the right to request to work from home.

Can Employers Reject Flexible Work Requests?

A flexible work request can generally only be refused if:

  • the refusal is on reasonable business grounds;
  • the employer has discussed the request with the employee with a genuine intention to reach an agreement to accommodate the employee’s circumstances; and
  • the employer has considered the consequences for refusing the request.

Reasonable business grounds may include that:

  • the request is too costly;
  • there is no capacity or it would be impractical to change the working arrangements of other employees or hire new employees to accommodate the request; and
  • the request could cause a significant loss in productivity or negatively impact on customer service.

The employer’s circumstances, including the size and the nature of the business, should also be considered.

Employers who receive a valid request for flexible work arrangements from an eligible employee must provide a written response within 21 days to confirm whether the request is accepted or refused.

The Fair Work Commission can also hear disputes about flexible working arrangement requests (including when they are refused) and make orders to resolve disputes.

Please note that enterprise agreements and modern awards may also contain specific rules about flexible working requests different to the above.

Recent Rulings: There is No General Right to Work from Home

The Federal Circuit and Family Court has recently confirmed that employees do not have a general entitlement to work from home under the Act. In this case, the employee claimed she had been bullied and discriminated against because she was refused the right to work from home. However, the Court held that the employee had no contractual or legislative right to work from home.  Additionally, just because another employee within the business has been permitted to work from home, does not mean that other employees also have that same entitlement. Specifically the Court said, “somebody who was working at a different level doing a different job with a different level of experience“, can be treated differently to another employee “when it came to working from home“.

Another recent case in the Queensland Industrial Relations Commission has also confirmed that while employees have the right to request a flexible work arrangement, there is no obligation for the employer to agree, provided they have complied with their obligations under the relevant industrial instrument or legislation.  In this case, an employee working from home under a series of flexible working arrangements since taking maternity leave in 2018, was told that her employer could no longer support another extension of her arrangement to work from home.  Reasons were provided to the employee, including that there were difficulties recruiting suitably qualified staff who may be interested in job share arrangement, and the impact on other staff having to fulfil her duties. The Commission ruled that the employer had complied with its obligations under the Industrial Relations Act 2016 (Qld) (which has similar flexible working arrangement provisions as the Act), including making multiple attempts provide for alternative ways to accommodate this employee. On this basis, the employer was not obligated to extend her flexible working request to work from home.

The Commission noted that while flexible working arrangements “are a matter for mutual agreement between an employer and employee. But importantly, provided the grounds of refusal are reasonable (and in writing), the discretion to grant a flexible working arrangement (or not) remains with the employer”.

Key Takeaways for Employers

While employees do not have a general right or entitlement to work from home, they may have a right to request a flexible work arrangement. This will include to work from home. Employers are able to reject such requests, however they must firstly satisfy their obligations under the Act or relevant industrial instrument, and any refusal must be based on reasonable business grounds.

If an employee does not have a contractual entitlement to work from home, or an entitlement within the relevant industrial instrument, then it may be open to an employer to issue a ‘lawful and reasonable’ direction to work on site, and potentially take disciplinary action against an employee who does not comply. In saying this, it is generally best practice to seek to reach mutually agreed arrangement in respect to flexible working arrangements, where possible.

For tailored advice pertaining to dealing with your organization’s specific obligations, of working from home and of flexible working requests of employees, consult HR Legal. Our lawyers are here to guide employers through the evolving changes of the workplace.

Case References

Homes v Australian Carers Pty Ltd (No 2) [2023] FedCFamC2G 714

Dudley v State of Queensland (Office of Industrial Relations) [2023] QIRC 212


This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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