By Giuseppe Carabetta and Samantha Hinderling -
Snapshot
- In the wake of the pandemic, flexible working arrangements have seemingly become the newer normal but to what extent are employees entitled to them and on what grounds are employers entitled to deny them?
- The answer to this question will often boil down to whether there is a ‘nexus’ between the requested arrangement and an employee’s specific circumstances.
- This article outlines the relevant legislation and extrinsic materials, and discusses the nuance of several recent cases that highlight key lessons for employees and employers.
With the spectre of COVID-19 in the rearview mirror, many organisations are calling for their employees to return to the office. Some, like Amazon, the Commonwealth Bank, Woolworths and the NSW Government, have adopted strict return to office mandates. Even the federal Coalition party weighed in on the topic at one point, suggesting an end to work-from-home entitlements for all public servants, although their proposed policy has since been reversed. Despite strict mandates, there are likely to be exceptions (e.g. for persons living with a disability and carers) and many organisations (e.g. Zoom and Westpac) offer a flexible ‘hybrid’ arrangement, whereby employees are required to work part of the week in the office and part from home.
While a mandate to return to the office is generally deemed lawful and reasonable, and thus needs to be adhered to by employees, some workers may insist on or believe they are entitled to flexible working arrangements (‘FWAs’). We explore the technical requirements behind requests for FWAs made under the Fair Work Act 2009 (‘FW Act’), in particular requests to work from home, and distil the key takeaways from four recent decisions by the Fair Work Commission (‘FWC’).
