Generally there is no right to work at a location other than the location where an employee is contracted to work. Most employment contracts include an agreement that an employee’s place of work is at a specific location, so there is a legal obligation for the employee to attend that workplace.

During the COVID pandemic, either on a temporary basis to meet health and safety concerns or as a result of legally binding public orders / directions, some employers allowed their employees to work from home or at a remote location on a temporary basis.

We have seemingly passed the era of public health orders and “lockdowns”. The key issue faced by employers and employees is how to agree on return to working in the office after so many employees have been working from home since early 2020.

For employers dealing with employees who are reluctant or refuse to return to the workplace, the question becomes whether the employees are entitled to request flexible work arrangements so they can continue to work from home.

There is a limited right for some employees to request a flexible work arrangement under the National Employment Standards (NES) of the Fair Work Act 2009 (Cth). An employee may request a change in their working arrangements – including a change in the location of work, such as working from home – if they require flexibility because they:

• are the parent, or have responsibility for the care, of a child who is of school age or younger
• are a carer (within the meaning of the Carer Recognition Act 2010)
• have a disability
• are 55 or older
• are experiencing violence from a member of their family, or
• provide care or support to a member of their immediate family or household, who requires care or support because they are experiencing violence from their family.

Employees are entitled to make the request to their employer if they have completed at least 12 months of continuous service with their employer immediately before making the request.

An employer must respond to a written request for flexible work arrangements within 21 days. An employer can only refuse such a request on “reasonable business grounds”. If a request is refused the written response must include the reasons for the refusal. Reasonable business grounds include where:

• the new working arrangements requested by the employee would be too costly for the employer
• the working arrangements of other employees cannot be changed to accommodate the request
• it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the request, or
• the new working arrangements requested would be likely to result in a significant loss in efficiency or productivity or have a significant negative impact on customer service.

On and from 6 June 2023, as a result of workplace reform in the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, there will be changes to flexible working arrangements provisions in the NES. These changes significantly will:

• increase an employer’s obligations when considering an employee’s request, with the aim of supporting or improving an employee’s access to flexible working arrangements, and

• introduce dispute resolution provisions that empower the Fair Work Commission (FWC) to make orders where an employer refuses an employee’s request, including whether the employer has reasonable business grounds to refuse the request, or where the employer has not responded to the request within the required 21 days.

Importantly, the circumstances where an employee may request flexible working arrangements under the NES will remain limited, and will not give employees greater rights to continue to resist a return to work at the office, unless of course they are covered by one of the specific categories.

However, the procedures that govern how employees may request a flexible working arrangement from their employer will be updated:

• an employer will be required to respond to the request within 21 days with a written response that either grants the request, provides an agreed amended request (if, following discussion, the employer and employee agree to amend the request), or refuses the request with reasons
• if an employer refuses a request, they must provide the reasons for the refusal, the business grounds that underpin the refusal, and any changes the employer would be willing to make, and
• the grounds for refusing a request will be tightened and a request can only be refused following discussions where the employer and employee genuinely tried to reach agreement and the employer has had regard to the consequences of refusing such a request.

The changes will also introduce a dispute resolution process. Employers and employees will need to attempt to resolve the dispute at the workplace level and if it is not resolved there, either can apply to the FWC to assist with resolving the dispute. The FWC will be given powers to firstly deal with the dispute by means other than arbitration, including conciliation and mediation. After mediation or conciliation, the FWC may then arbitrate a dispute and issue orders relating to a refusal where there is no reasonable prospect of the employer and the employee resolving the dispute themselves. Civil penalties will also be introduced for breaching an order of the FWC.

When faced with an employee’s request to work from home, how should an employer deal with the issue?

The overarching position is that subject to any specific terms in the contract of employment, or any binding policy which provides extended rights to request flexible work arrangements and / or to work remotely, an employee must return to their workplace when directed by an employer to do so.

An employer can give a lawful and reasonable direction to the employee to return to the workplace. If an employee declines to comply with this direction, the employer can proceed down a disciplinary path including termination for failure to follow a lawful and reasonable direction.

However, prior to taking any disciplinary action against the employee, there should be some discussion with the employee so that the employer can properly understand their reasons for refusing to comply with that direction. If those reasons are simply personal preference, perceived efficiencies as a result of working from home or similar, then that generally will not be a sufficient reason to not comply with the direction. On the other hand, if the employee can establish some form of disability (such as a medical condition that impedes their ability to travel to the workplace or perform all of their duties), and which means they could only perform the inherent requirements of the role by the employer making reasonable adjustments to their role, then reasonable adjustments may need to be considered.

This article was co-written by Marie Feltham, Special Counsel.

This article is not legal advice.  It is intended to provide commentary and general information only.  Access to this article does not entitle you to rely on it as legal advice.  You should obtain formal legal advice specific to your own situation.  Please contact us if you require advice on matters covered by this article.