What are my rights regarding flexible working arrangements and working from home? – Employee Rights/ Labour Relations

You might have noticed an increased requirement for you to
return to the office after a few years of working remotely as a
result of the COVID-19 pandemic. For many people, some working
benefits provided by your employer now include greater flexibility
for working arrangements including the ability to work from home
for some of the time in a hybrid working model. You might
experience difficulty during the transition back to the office, and
it is important to know your rights when it comes to requesting any
flexible working arrangement from your employer. This is
particularly important because significant changes were made to the
Fair Work Act 2009 (Cth) last year which enhanced
employee’s rights in this area ¹. This article
examines employee’s rights regarding flexible working
arrangements and working from home.

How do I make a request for flexible working
arrangements?

As a first step, if you wish to work from home, you should first
check what policy or policies your workplace might have in place
regarding flexible working arrangements and what you may be
entitled to negotiate.

You should always seek to negotiate an agreement with your
employer in writing, starting with you making a written request for
your flexible working arrangements. If you are a new employee, you
should ensure that any agreed working from home arrangement is
formally documented before commencing your employment and is a part
of any contract you might sign.

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

Can everyone request flexible working
arrangements?

Only eligible employees can request a flexible working
arrangement. The request is made pursuant to section 65 of the Fair Work Act 2009 (Cth) (FWA)
².

You may be eligible if you have been employed for over 12 months
by an employer and fall into one of the following categories:

• pregnant;




• a parent of a school-aged child;




• a carer;




• have a disability (including an illness);




• are 55 years of age or older;




• experiencing family and domestic violence; or




• provide care or support to an immediate family or household
  member who requires care and support because they are experiencing
  domestic and family violence.

Your request for a flexible working arrangement must be made in
writing and you need to set out the details of the changes you seek
and the reason for the request for the change².

How long can the process take?

Section 65 of the FWA confirms that your employer has 21 days to
respond to your request for flexible working arrangements.

Your employer can refuse the flexible working arrangement
request, and there is no requirement for your employer to agree to
your request. However, if refused, your employer must set out the
grounds for the refusal.

If you as an employee have previously demonstrated that you can
work from home productively, it may be more difficult for your
employer to rely on reasonable business grounds for denying your
request.

If you have a dispute with your employer over this issue, it is
possible for the Fair Work Commission to assist the parties to
negotiate a settlement or, in an extreme situation, arbitrate on
the dispute.

Do I have discrimination rights?

You as an employee also have protections under federal or state
anti-discrimination laws ³ which generally prohibit
unlawful discrimination on the grounds of protected attributes, the
most pertinent of which are probably these:

• sex;




• family or carer’s responsibilities;




• age;




• disability and pregnancy.

Your employer may be acting unlawfully if they refuse your work
from home request because of a protected attribute. The general
protections provisions under Part 3-1 of the FWA furthermore
prohibit your employer from taking any retaliatory action against
you as an employee because you have made a flexible work request
under the FWA, or made an enquiry in relation to your employment.
For instance, it is unlawful for an employer to dismiss an employee
because they made a flexible work request or requested to
renegotiate the location of their work to include working from
home.

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

Any failure by you to comply with a lawful and reasonable
direction could result in disciplinary action being taken against
you by your employer. If you are dismissed, you may have a right to
pursue an unfair dismissal claim or general protections claim,
however, this is a complex area of law and you should obtain legal
advice from an expert employment lawyer to get advice about whether
these circumstances apply to you in your case.

Footnotes

¹ Fair Work Legislation Amendment (Secure
Jobs Better Pay) Act 2022 (Cth); changes relating to flexible
working arrangements commenced 6 June 2022.

² Fair Work Act 2009 (Cth) s
65.

³ See Age Discrimination Act 2004
(Cth), Australian Human Rights Commission Act 1986 (Cth),
Disability Discrimination Act 1992 (NSW), Racial
Discrimination Act 1975 (Cth), and Sex Discrimination Act
1984 (Cth).

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.