Can Australian employers stop you working from home? Here's what the law says

• It’s part of a trend of employers winding back the work-from-home flexibility that enabled most to keep operating through the pandemic in 2020 and 2021.
• In Australia, close to 90% of employers have implemented mandatory in-office days, according to a survey of 300 hiring managers commissioned by recruitment agency Robert Half.
• The survey shows 19% insisting on five days a week, 28% on four days, and 26% on three days.

Is it a ‘lawful and reasonable’ direction?

• Even if this isn’t stated specifically anywhere, Australian courts have ruled this requirement is “implied” in every employment contract.
• But a detailed and considered plan requiring employees to return to the workplace safely will be lawful and reasonable.

Is consultation required?

• The Fair Work Ombudsman says consultation requires giving notice, discussing the proposed changes, providing written information and giving “prompt consideration” to any matters raised by employees and their representatives.
• Even though the employer ultimately doesn’t need consent, the consultation still needs to be genuine and properly consider employees’ views, following the processes set down in the applicable award or agreement.

What about flexible work arrangements?

If your award, enterprise agreement or employment contract contains “workplace flexibility” provisions, you may have rights to work from home or to make a request. In addition, the national employment standards under the Fair Work Act give employees the right to request “flexible work arrangements” if they’ve been with the employer for at least 12 months, and:
• Casual employees have similar rights if they have been working regularly and systematically for at least 12 months and have a reasonable expectation of continued work on the same basis.
• Employers who get a request for flexible working arrangements need to respond in writing within 21 days.

Reasonable adjustments for employees

• The “humane way” to introduce such a policy (regardless of any legal requirement) is to consult with employees over the change.
• That way, they can accommodate employees – so far as is practicable – and if required, make reasonable adjustments.