By Karl Hoerr -
Dumping a policy during an election campaign wouldn’t be unprecedented, but it’s probably not that common either. So Opposition Leader Peter Dutton’s move to spike a requirement for Commonwealth public servants to return to the office full-time, is being seen as a measure of the depth of feeling among many Australians about working from home. But what are the legal parameters of the issue, and have we underestimated the role of WFH post-COVID?
Mia Pantechis is a Principal in employment and industrial law at Maurice Blackburn. She says the pandemic showed what was possible when it comes to workplace flexibility, which was already a big issue for employees. “And I think this policy and its announcement raised alarm bells and concern around the Australian working population about whether we were going to start to see a shift to the approach taken pre-COVID and whether this flexibility was here to stay or not.”
It is now commonplace for organisations to have a flexible working policy, which requires a certain proportion of time in the office. In other cases, arrangements may be determined at a team level and negotiated with managers.
Under the Fair Work Act, certain employees can request flexible working arrangements and if the request is refused, employers must explain why, and the reason must be based on reasonable business grounds.
Changes made by the Labor government allow employees to challenge such a refusal in the Fair Work Commission, if they believe those grounds are unreasonable. “[T]here’s a mechanism there to formally make these requests and get proper reasons and if there aren’t proper business grounds for refusing it, there’s an ability to have that arbitrated and looked at by the independent umpire,” says Pantechis.
Several major employers in the private sector have moved to bring their staff back to the office, in some cases five days a week, such as Amazon. “So we are seeing the private sector in some instances trying to navigate this issue and require additional attendance and return to work mandates,” says Pantechis.
“But I think the policy struck a nerve because flexibility has always been a paramount expectation and concern for workers, balancing family life and demanding jobs and personal responsibilities.”
Pantechis says there are plenty of situations where employers could establish reasonable business grounds for refusing a flexible work request. “So, for example, if it’s too costly, or there’s evidence that it’s going to impact productivity or it’s bad for customer service,” she says.
“They can’t just say, ‘We have an office-wide or organisation-wide policy that everyone is required to be at work and that’s the reason.’”
To Pantechis, there’s plenty of scope under the current laws for employers to deal with these issues. “[T]hey do have capacity to issue lawful and reasonable directions and to implement policies about office attendance,” she says.
“But I think where they run a risk is where they have a blanket mandate and they haven’t actually done the thinking and looking at the data around, well, what is actually productive? What do I need to get the best out of my staff?”
And in a tight overall labour market, employers risk struggling to find and retain the best staff. “[I]f a competitor is offering more flexible arrangements then they’re likely to lose those staff in the long term, unless they do some real thinking about what works for them in a business setting and from an operational perspective and what balances what’s important to staff and what they’re looking for (in) an employer in 2025.”
