Work from home (WFH) – Lets get all the answers

Do I Have a Legal Right to Work from Home?

With the Netherlands poised to enact new legislation codifying workers’ right to work from home, it is worth asking whether such a right exists in Australia. The answer is that there is no stand-alone legal right to work from home in Australia. Not as such. However, the Fair Work Act does provide some requirements for employers’ consideration of employee requests for Flexible Working Arrangements. Under certain circumstances and for certain workers, violations of the right to proper consideration of such requests are addressable.

This Article will discuss the extent of Australian law with regard to the right to work from home. The right to have your request for a Flexible Work Arrangement properly considered. It will provide some guidance for next steps, should your rights as an employee in Australia be impinged.

By way of contrast, it will also discuss in detail what is happening with regard to remote work entitlement, exactly, in The Netherlands and in other countries such as the United States. First, however, a basic question.

Why Are Workers Asking for the Right to Work from Home?

The Financial Review reports that working from home has saved the average Australian $10,000. That’s a good reason to ask your employer for the right to work from home. However money is not the only reason. Without a lengthy commute clogging up your schedule, you are able to spend more time with your family. Or engage in non-work hobbies and other pursuits. In other words, working from home increases your productivity.

That’s right: yours, not your employer’s. Remote work also allows workers to search for ideal jobs on a non-local basis. Geography does not need to limit you to working for the three companies who happen to be located in your town. Instead, the remote worker is able to choose from positions nearly anywhere in Australia (or the world) without ever leaving home.

Lack of interpersonal contact means reduced office conflict, further. A diminished need to attend time-wasting office functions—whether a pointless meeting or yet another break room birthday party—boosts employee morale. No one likes those stupid team-building exercises, it turns out. (Shocker!) Finally, while many may view the COVID-19 pandemic as having faded from the headlines, it hasn’t actually gone anywhere. It’s simply safer to work from home. This is true as regards COVID or any other airborne illness.

Indeed.com reports that 58% of Australian employees believe that working from home results in fewer sick days, all around. It’s no surprise, then, as another report indicates, that 57% of Australians would prefer to quit their jobs rather than to give up remote working. Are you one of them? Odds are good that you are.

The Right to Work from Home in the Netherlands—and Elsewhere

So what does an “official” legal right to work from home actually look like? The Netherlands points the way. And it’s not alone. Currently, Dutch law permits employers to deny workers’ request to work remotely without restriction. However, as noted above, new legislation already approved by the Dutch Parliament (not yet the Dutch Senate, as of this writing) amends the existing Dutch Flexible Working Act of 2015 to accommodate a default right to work from home.

Under the current iteration of the Flexible Working Act, Dutch workers do have the right to request changes to their schedules and, to some extent, the location in which they work. This new amendment goes further to require employers, instead, to consider any request to work not from another corporate office—but from home. Further, employers will be required to provide an “adequate reason” for the denial of the request to work from home.

What will the “adequate” reasons be under the new Dutch legislation? Reports are not yet clear on this point. But employers are required to “carefully consider” a request to work from home. Presumably, this means that a knee-jerk or blanket policy of denying such requests will be actionable in the Netherlands. Likewise, the Irish government also has similar legislation in process. The Irish Right to Request Remote Work Bill 2021 has been published for review prior to enactment.

Employers obligations

The summary located here details employers’ obligations, as well as the grounds for a “reasonable” denial of a request to work from home. In particular, Irish employers will be required to maintain a written work from home policy setting out the mechanisms. Further processes for management of worker requests.

Reasonable grounds for denying work from home requests

Reasonable grounds for denying work from home requests in Ireland will include:

• The nature of the work is not compatible with remote functioning;
• Issues reorganising staff to accommodate the request;
• Possible negative performance or quality impact;
• Impending structural change;
• Burden of related costs;
• Confidentiality or intellectual property protection concerns;
• Concerns about the proposed workspace on safety or health grounds;
• Internet connectivity issues with the proposed remote location;
• Excessive distance involved;
• Conflicts with collective agreements;
• Recent disciplinary issues as regards the requesting employee.

These are pretty broad grounds for denial. One can imagine nearly any employer with a halfway clever human resources department managing to shoehorn almost any employee’s request into one or more of these bases. Nevertheless, the Irish legislation formalizes the right to work from home, at least. Let the litigation flow from that starting point. Slovakia, Argentina, Chile, and Colombia have also enacted laws to permit remote work and working from home, to varying extents.

The Right to Work from Home in the  United States

Like Australia, the U.S. has no provision in place to specifically create a right to work from home. In the U.S., it is entirely within an employer’s discretion whether or not an employee is permitted to remotely or not. Some ancillary statutes, such as the Family Medical Leave Act (FMLA) require employers to accommodate the disabilities or medical needs of employees afflicted with certain medical conditions.

This statute requires that employers provide a physical work environment for those employees that ensures the ability to work on an even footing with other employees. It prohibits workplace and employment discrimination against those with certain medical conditions, among other things. Any employee whose condition does not sweep them into the FMLA’s coverage is not entitled to work remotely in the U.S.

Unless a collective bargaining agreement or some other contractual agreement provides otherwise, there is no other recourse other than hat-in-hand asking for remote work in the U.S. Australia’s legal framework is somewhat more amenable to work from home requests. But only just.

The Current Legal Work from Home Framework in Australia

Similarly, there is no right to work from home in Australia. Not really. What we have is the right to request a “flexible working arrangement.” What’s the difference between this and the right to work from home as propositioned by The Netherlands and Ireland? Alot.

The Australian right to a flexible work arrangement is simply the right to ask your boss for something other than the requirement that you sit in a cubicle for 40 full hours per week while working. And it only applies if you’re a caregiver to someone in need. If you’re a single guy who simply works better and more efficiently without Linda from accounting hanging around your desk going on about Downton Abbey all the time, too bad.

You have no right to either work from home or to a flexible working arrangement under Australian law. First, however, what is the Australian Flexible Work Arrangement, exactly?

The Right to Request a Flexible Working Arrangement in Australia

The right to request a flexible work arrangement in Australia arises from statute. That is, it is written into law. That law is the Fair Work Act 2009 (FWA). Section 65 of the FWA provides that employees in Australia may request a flexible work arrangement of certain sorts—and if they are employees of certain sorts.

Who May Request a Flexible Working Arrangement?

Specifically, the FWA allows an employee in an Australian workplace to request a flexible work arrangement if that employee is:

• A parent or otherwise cares for a school-aged or younger child;
• A “carer” as defined by the Carer Recognition Act 2010;
• Disabled;
• 55 years of age or older;
• Experiencing family violence;
• Providing care or support to a member of the employee’s immediate family.

Regarding the second bullet, above, the Carer Recognition Act 2010 defines a “carer” as an individual who provides personal care, support, and assistance to another individual in need because that individual:

• Is disabled;
• Has a medical condition (including terminal or chronic illnesses);
• Is frail or aged.

A “carer” is not, under that statute, someone who:

• Provides service under a contract;
• Provides service as part of a voluntary or charitable effort;
• Provides service as required by an educational or training course.

A person is not automatically a “carer” simply because he or she is the spouse, parent, child, or other relative of an individual or simply because he or she lives with someone who requires care. You have to actually be the one providing the care, in other words. (Nice try, Uncle Charlie!) The Fair work also clarifies that an employee who is a parent or cares for a young child or is returning to work after birth or the adoption of a child may request the flexibility of working part-time.

However, no employee can request a flexible working arrangement unless:

• The employee has worked for at least 12 months continuously; or
• For casual employees, the completion of at least 12 months of continuous service along with the reasonable expectation that the casual employee will continue the employment on a regular and systematic basis.

In other words, you can’t start a job on Day 1 and, then, on Day 2, request a flexible working arrangement. What is a “Casual Employee” under Australian law, generally? You are a “casual employee” if your employer has made no advance commitment to your employment on any fixed or regular basis and you have accepted the employment with that understanding.

If you have the right to accept or reject the work of your employer, you are a casual employee. If you work only when needed, you are a casual employee, also. Likewise, if your job description specifically states that you are a casual employee or if you are paid an hourly wage specific to casual employees, this will also be the case.

In other words, if you’re a casual employee, you will have to demonstrate some level of intent on your own and your employer’s behalf that you will continue onward from the date of the request. If you can’t do that (and how easy is it for you to demonstrate an employer’s intent?), you will have very limited rights to a flexible working arrangement under the FWA.

What Does a Flexible Working Arrangement Allow?

A flexible working arrangement under Australian law allows for a variety of specific adjustments to an employee’s work routine or to the structure of the position itself. What form or shape the flexible working arrangement can take is up to the discretion and mutual agreement between you and your employer.

As to what “flexibility” means, the Fair work simply states that an employee can request a change to his or her working arrangements relating to the circumstances requiring the change. However, the statute does provide a few examples of what a flexible working arrangement can include. These examples include changes in hours of work, patterns of work, and locations of work. Would this imply remote work is possible? Sure. If your employer agrees that it does.

Otherwise, a flexible work arrangement as conceived by the Fair work might include the following:

• Flexible start or finish times;
• Compressing hours (to work 40 hours over 4 days rather than 5, etc.);
• Part-time work;
• Casual work;
• Job sharing or division of tasks between employees;
• Flexible rostering;
• Extra paid leave or unpaid leave;
• Flex-time allowance;
• Increasing or decreasing work hours in a graduated fashion.

Asking is a right

For example, if you are a “carer” as defined by law and do need to be on hand to watch over a disabled, elderly family member, working from home rather than a cubicle would certainly constitute a flexible work arrangement that is tailored to your needs. However, this does not mean that you have a legal right to work from home. You can ask. That’s it.

How to Request a Flexible Working Arrangement

So what is the best way to ask? Under the Fair work, employers should maintain a written policy regarding requests for flexible working arrangements that should comply with Australian law. The Fair work requires the following, however. The request must be made in writing. That written request must include the details of the change being requested. It must include the specific reasons for the change.

In other words, you must ask for a specific aspect of flexibility. It is not up to your employer to suggest one to you. What is going on, why is it happening, are you a “carer” within the legal definition of the word, and what is it that you want, exactly? This is what you must include in your written request.

What Happens After a Flexible Work Arrangement Request?

After you submit a written request to your employer, your employer is required to provide a written response to you within 21 days. That response must clearly state whether your request is granted or refused. Your employer can only refuse the request on “reasonable business grounds.” What are these reasonable business grounds, exactly?

The FWA describes the following grounds as reasonable, in example:

• The cost of the proposed arrangement;
• The employer lacks the capacity to accommodate the proposed arrangement;
• The impracticality of the proposed arrangement in terms of any need to change the arrangements offered to other employees or to the need to recruit new employees;
• The proposed arrangement would result in a loss of productivity;
• The proposed arrangement would negatively impact customer service.

This is, the statute notes, not an inclusive list. That is, an employer may have other reasonable reasons to refuse the request. However, as noted, if the employer does refuse the request, the written response must include the specific details of the reasons for the refusal.

What to Do If Your Right to a Flexible Remote Working Arrangement Is Violated

If your employer unreasonably refuses your request for a flexible working arrangement, you have the right to take action. If an employer’s refusal of your request is unreasonable, you can file a claim with the Fair Work Commission. The Fair Work Commission may, preliminarily, request that your employer attend a conference to facilitate some resolution. Failing your employer’s agreement to sit down and talk, or failing a resolution, further steps may be taken to order a remedy.

If your employer is found to have unreasonably denied your request or denied it for some discriminatory reason, it can be ordered to pay a penalty. Employers can be ordered to pay:

• $13,200 if individual employers, or
• $66,600 if a company.

Long story short, the right to request a flexible work arrangement in Australia has teeth. However, the right of employers to refuse such requests is very broad, leaving a lot of space for employers to claim that customer service or productivity will suffer if the request is granted. Proving that these claims are false, discriminatory in essence, or rooted in some level of bad faith will be difficult to prove given the  FWA’s broad language “not intended to limit” employers’ “reasonable grounds.”

Thus, your first call when faced with discrimination, unfair dismissal, allegations that your position is suddenly redundant, or a relegation to (unasked for) casual work status may need to be to an experienced employment attorney.

Will Australia Ever Allow a Right to Work from Home?

In the wake of the COVID-19 pandemic, can Australia do better? Should it? That second question is easy. Yes, it should. Given the advantages of remote work for workers as well as the extent to which employers also benefit from remote work environments, the Australian legislature should follow the example set by The Netherlands and Ireland to draft into law a remote work entitlement.

The only parties who don’t benefit are commercial landlords who rent office space to companies on a square meter basis. The financial bottom line of these landlords should not drive Australian employment and, frankly, Australian human rights law. More and more Australians want remote work capability without the need to request—and have refused—the accommodation.

71% of Australians who are back in the office full-time want to work at least 1 day from home. More than 50% of those workers want more than one. More than 50% of employers agree that workers can be just as productive at home as in the office, furthermore. Australian Bureau of Statistic Chief David Gruen agrees that working from home is here to stay, The Australian Financial Review also reports. More than 40% of all Australian workers are, indeed, currently working from home, the Bureau of Statistics reported.

What does this mean?

It means that the tide is on the side of those pushing for remote work entitlement. Although the influence of the less-than-50% of Australian employers still stuck in the 20^th Century remains great upon the Australian Parliament. A change will eventually come. However, for now, the right to request a flexible work arrangement that includes the ability to work from home remains your best shot for remote function if you don’t already have it.

Conclusion to Work from home – what are my legal rights?

A Whole New Approach Pty Ltd. is dedicated to representing employees only in unfair dismissal, harassment, and other workplace disputes. We are not lawyers. We are the workplace advisors that will help you respond to a flexible work arrangement refusal. There is a case for many employees to return to work, “the power of relationships at work” be aware of the alternative benefits.

We stand with you as warriors. Against discrimination to help you to achieve the best outcome possible in your particular circumstances. If you feel that you have been discriminated against, harassed, or have been unfairly dismissed, contact us now to schedule your initial consultation, and let’s continue to move the history of Australian employment law forward—together.

Call 1800 333 666 anytime

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