26 May Do I have a right to work from home?

The pandemic years saw an exponential spike in Australians working from home. In fact, as of April this year, almost twice as many employed Australians worked from home one or more times a week compared to before the pandemic. Now that working from home is considered to be a new normal for the Australian workforce, you may be wondering as either a business owner or an employee what rights does an employee have to work remotely. Working from home, including hybrid arrangements further creates a new avenue of consideration for employers. Keep reading to learn about the rights different individuals have when it comes to working remotely.

Working Remotely

Flexible working arrangements can materialise in many forms. Whether it means flexible start and finishing times, flexible rostering or working from home, there are a multitude of options to explore to create a more suitable schedule. These arrangements may be agreed upon between an employer and employee to help develop a work-life balance. Anyone can request a more flexible work schedule with their employer, however, in certain circumstances an employee will have legal entitlements to request a remote working arrangement.

What rights do employees have?

While there may not have been terms outlining a ‘working from home’ arrangement in a work contract, it is important to note that an employee may have the legal entitlement to request flexible working arrangements under the Fair Work Act. To be eligible to request flexible working arrangements under the act, the employee must either be a permanent employee who has worked with an employer for at least 12 months, or a casual employee who has worked with a company for at least 12 months, with a reasonable expectation that employment will continue on a regular, systematic basis. As listed on fairwork.gov.au, the employee must be making the request based on any of the following circumstances:

• Are a parent of, or have responsibility for the care of, a child who is school age or younger
• A carer (within the meaning of the Carer Recognition Act 2010)
• A person with disability
• Aged 55 or older
• Are experiencing family violence, or
• Are providing care or support to a family member, or someone they live with, who is experiencing family violence.

What rights do employers have?

As an employer, there are certain obligations you should adhere to ensure you are working in ‘best practice’. Fair Work suggests that best practice employers should respect their employees work life balance, understand the legal requirements regarding flexible working arrangements and have processes in place to manage them. This means that when an employee request some form of flexible working arrangement, you should first consider their request, taking into account the reasons for the employee making the request, and the potential impacts on the employee/your business should the request be granted. You should also open discussion with the employee and attempt to reach a shared agreement about these changes to their working schedule. A response stating whether the request is granted or rejected (providing reasons if the request is rejected), should be delivered within 21 days.

On one hand, it is in best practice to give employees flexibility in their working schedule to provide a more manageable work life balance when requested. However, as an employer, you have the right to refuse a request from an eligible employee on reasonable business grounds. As outlined on fairwork.gov.au, reasonable business grounds for refusing a request may be:

• The cost of the requested arrangements would be too costly for the employer
• There is no capacity to change the working arrangements of other employees to accommodate the request
• It would be impractical to change the working arrangements of other employees, or take on new employees, to accommodate the request
• The requested arrangement is likely to result in significant loss of efficiency or productivity. The request may also have a significant negative impact on customer service

Benefits of flexible working arrangements

It is also important to consider the benefits of granting a request related to flexible working arrangements. Giving employees the chance to conduct work with respect to their own needs, may immensely improve job satisfaction, and thus productivity. Workers are likely to be less stressed, which may be extremely favourable for the work quality and overall profitability of a company.

Developing a policy

As an employer, it may be worth considering developing a policy outlining the exact terms of flexible working arrangements. These include how to apply for such arrangements, the conditions under which an employee can apply, how the request will be considered, and how the changes in an employees work schedule will be recorded.

Technology

As was discovered over the pandemic, technology has the ability to effectively facilitate communication between employers and employees remotely. Investing in technology by providing portable devices to employees, setting up online meetings, or providing remote access to your business’ features can allow you to monitor the effectiveness of an employee’s flexible work arrangements, whilst simultaneously allowing them to have increased control over when/how they work.

Key Takeaways

Working from home has evolved into a standard practice of many workforces, and therefore it is important that you understand your rights when deciding to work away from the office. As experienced commercial lawyers, we understand your rights as either an employer or employee and are ready to help you navigate the area of flexible working arrangements.

If you have any questions, please contact Lord Commercial Lawyers on (03) 9600 0162 or email us at info@lordlaw.com.au