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As the transition back to the office after years of remote working is starting to take place, employees are entering a new phase of working life.

For many, benefits will include greater flexibility including the ability to work from home part-time in a hybrid model.

For some employees, difficulties may arise in the transition. As always, it’s important to know your rights.

I don’t want to go back to the old way of work - what should I do first?

As a first step, if you wish to work from home, you should seek to negotiate an agreement with your employer, starting with a written request. New employees should ensure that any agreed working from home arrangements are formally documented.

Most employees do not have an express right to work from home and can be required to work from the office. However, certain categories of employees can rely on additional legal rights to strengthen a working from home request. In certain circumstances, it may even be unlawful for the employer to refuse.

Right to make a request for a flexible working arrangement

Eligible employees can request a flexible working arrangement pursuant to section 65 of the Fair Work Act 2009 (the FW Act). Employees may be eligible if they have been employed for over 12 months and fall into one of the following categories:

  • is a parent of a school-aged child;
  •  is a carer;
  • has a disability (including an illness);
  •  is 55 years of age or older; or
  • provides care or support to a family or household member experience family violence. 

 

The request for a flexible working arrangement must be made in writing and set out the details of the changes sought and the reason for the change.

Employers can refuse the request, and there is no requirement for an employer to agree to a request. However, employers must respond in writing within 21 days setting out reasonable business grounds for the refusal.

Where employees have previously demonstrated they can work from home productively, it may be more difficult for employers to rely on reasonable business grounds.

Rights in relation to discrimination

Employees also have protections under federal or state anti-discrimination laws which generally prohibit unlawful discrimination on the grounds of protected attributes, including:

  • sex
  • family or carer’s responsibilities
  • age
  • disability and pregnancy
     

Employers may be acting unlawfully if they are refusing a work from home request because of a protected attribute.

Right to protection from retaliatory action

The general protections provisions of the FW Act prohibit employers from taking retaliatory action against employees because they have made a flexible work request under the FW Act, or made an inquiry in relation to their employment.

For example, it is unlawful to dismiss an employee because they have made a flexible work request or inquired about renegotiating their location of work to include working from home.

This is a complex area of law and employees should seek legal advice if these circumstances apply.

Lawful and reasonable

Where working from home arrangements are not agreed, a direction to return to the office is likely to be lawful and reasonable as long as it is in line with current health recommendations and public health orders, and the employer is providing a safe working environment.

A failure to comply with a lawful and reasonable direction could result in disciplinary action being taken against the employee.

If an employee is dismissed, they may have a right to pursue an unfair dismissal claim or general protections claim. 

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