'It's not a blanket right that all employees can now work from home whenever they like,' says employment lawyer
In July, public servants across Australia were told they will be receiving expanded flexible work and work-from-home (WFH) rights following an agreement between the Community and Public Sector Union (CPSU) and the Australian Public Service Commission (APSC).
Under the agreement, all APS employees will be able to request a flexible work arrangement, including WFH, from agencies that will be approving such requests.
While many employers are more open and able to embrace flexible working options, it can be a challenging issue for HR.
For one, not everyone has the right work anywhere they like, according to Amie Frydenberg, partner in the workplace relations and safety team at Lander & Rogers.
“It's not a blanket right that all employees can now work from home whenever they like,” she told HRD Australia. “It's something that is really embedded in legislation.”
An employer can consider an employee’s request to work from home, Frydenberg said.
“Some companies are more flexible than others,” she said. “But from a strictly legal perspective, only certain categories of employees have an actual legal right to request flexibility. So that would include parents and carers, people with a disability, who are pregnant, over 55 or experiencing family violence themselves or supporting a family member who is experiencing family violence.
“If a person has disabilities, considerations also need to be had as to whether or not working from home is a reasonable adjustment under discrimination laws of whether that needs to be accommodated.”
Can an employer refuse an employee’s request to work from home? Again, “there’s no blanket right”, Frydenberg said.
“To be able to work from home, there are some legal categories of people who have a right to make that request,” she said. “Under the federal discrimination law, if an employee makes a request to work from home because of their disability and the medical evidence backs that up, then an employer can only refuse that request if they can prove it would impose an unjustifiable hardship on the business or if the person will not be able to fulfill the inherent requirements of their roles while working from home.”
When dealing with requests for flexible work under other laws, employers must act reasonably, Frydenberg said, and can only refuse a request on reasonable business grounds, “which involves many considerations, including cost, practicality, efficiency, impact on other staff and customer service. And these can be quite high thresholds to prove in practice, especially post-COVID where many of these jobs were performed from home for a long time – [they] had to be – and therefore there is evidence that they could be accommodated, if required.”
While flexibility has become a significant factor in the retention of staff and recruitment as well, there are risks for employers when it comes to allowing employees to work from home. Safe Work Australia recently published new resources on managing WHS risks when workers are doing computer-based work from home.
When it comes to working from home, the same safety laws that apply in the office apply when you’re working from home, Frydenberg said.
“There's still the requirement to ensure a safe workplace for your employees,” she said. “And that encompasses both physical safety and psychosocial safety.”
Another area of risk is recording and monitoring hours of work, Frydenberg said.
“Unfortunately, most industrial instruments haven't kept up with the demand for workplace flexibility,” she said. “You still require overtime to be paid for work performed outside of hours, even if employees choose to work that way. So that has posed challenges.”
In addition, there have been discussions about reasonable additional hours of work and the right to disconnect from work, she said.
“Another area that we've seen some challenges with is balancing working from home and carers’ responsibilities,” she said. “Many of our clients are now saying that you should not be caring for children or dependants at the same time as trying to perform work… in many cases, it's not feasible to be a primary carer and working at the same time, which can impact on performance, but also give rise to other risks including health and safety risks.”
For employers, the ability for an employee to work from home needs to be considered on an individual basis, Frydenberg said.
“Everybody's circumstance is different in terms of the work they perform, the manner in which they perform it, and the setup, perhaps, that they have at home,” she said. “It really needs to be considered on an individual basis.
“And global policies [that say] everybody must be in the office full-time simply don't work because there might be very good reasons why some people need to work from home, either full-time or from time to time. It's really important just to consider these requests on their individual merits and individual circumstances.”
Employees, on the other hand, should remember that while they’re working from home, they’re still working, Frydenberg said.
“The terms and conditions of their employment remain the same,” she said. “They're expected to be performing their work and they're expected to be behaving in a manner that is consistent with their employment. So all the usual laws that apply in the workplace in respect of appropriate workplace behaviour, harassment, bullying, discrimination, they would similarly apply whether you're sitting at home in your private space or if you’re sitting in the office space.”
