Flexible Working Arrangements (Home vs Office)

The concept of the workforce has fundamentally changed due to the COVID-19 pandemic.

Many employers have embraced new technologies and employee-working arrangements, such as working from home.

As COVID restrictions ease, many employers are sticking with working remotely as the new ‘norm’, while others are returning to work on a full-time basis.

A recent survey by the Australia Bureau of Statistics (ABS) found a near 10% increase in employees working from home regularly (41% in 2021, up from 32% in 2019).

According to another ABS survey, nearly half of the employees surveyed wanted to continue working from home (42%), while 14% wanted the amount of home-based employment hours to increase.

Naturally, some questions have been posed (among others):

Can I work from home if I don’t feel comfortable back in my pre-covid workplace?
What are the underlying legal requirements?
What are the best practices for workplace flexibility?

Who Can Request Flexible (Home) Working Arrangements?

There are several matters an employer must consider when facing a request for flexible working arrangements.

They must:

Adequately consider the request;
Properly respond to the request; and
Ensure remote working can be performed safely.

To make a request for flexible working arrangements under the Fair Work Act 2009 (Cth) (the FW Act), an employee must:

Have a child of school age or younger (this includes high school students);
Have a disability;
Be over 55 years of age;
Be a carer; or
Be experiencing family violence or providing support to a family member experiencing family violence.

Additionally, a permanent employee must have completed at least 12 months of employment with the employer.

For casual employees, they must:

Be employed on a regular basis;
Have completed at least 12 months of employment with the employer; and
Have a reasonable expectation of continued employment regularly with the employer.

There may also be additional provisions if modern employee awards apply.

How Can a Request Be Made?

A request for flexible working arrangements must be made in writing.

It must explain the details of the requests and the reasons for the proposed change.

How Should an Employer Respond to a Request?

An employer must respond to a request for flexible working arrangements within 21 days.

If they deny the request, the employer must explain the reasons for doing so.

For example, it may cause issues with other employees, or it may be too expensive for the business.

Work Health & Safety (WHS)

WHS responsibilities do not change for an employee working remotely and employers must ensure their employee is working in a safe workspace.

Some factors to consider include:

Ergonomics;
Lighting; and
Potential fall and trip hazards.

In Hargreaves v Telstra Corporation Limited [2011] AATA 417 (“Hargreaves”), an employee fell down her stairs twice during her hours of employment whilst working from home.

The injuries occurred as she left her workstation to lock her front door following her son’s departure to school.

The tribunal found both injuries to be work-related, even though she was not necessarily required to move around to perform her work duties.

It is strongly recommended that employers have a Working From Home WHS Checklist and Working From Home Policy in place.

Pros & Cons

Flexible working arrangements may serve real benefits for both parties.

For example, it can be beneficial for all if rent and office supplies can be saved while not hindering employee productivity.

Job satisfaction may also increase if they work from home (e.g., they save more time in their day).

Conversely, employees may find it harder to engage working remotely or struggle to distinguish the difference between work and leisure.

Communication with fellow employees may diminish too.

Considerations

In short, it is recommended that employers and employees consider the positives and negatives of flexible working arrangements.

Employers must consider their obligations to their employees, such as their WHS responsibilities, and make sure they address the matter in a legally binding way.