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.
Homes v Australian Carers Pty Ltd (No 2)  FedCFamC2G 714
Dudley v State of Queensland (Office of Industrial Relations)  QIRC 212