The recent shift by companies to require employees to return to the office has sparked discussions about the legality of such mandates.
Zoom, for instance, known for its remote work-friendly policies, has directed staff to return to the office for at least two days a week.
This shift is part of a broader trend, with close to 90% of Australian employers implementing mandatory in-office days, according to a survey by recruitment agency Robert Half.
The question arises: Can employers change their stance on remote work after initially directing employees to work from home? While in most cases the answer is yes, individuals have the right to advocate for flexible arrangements, provided they adhere to proper procedures.
Lawful direction
Employment contracts in Australia require employees, including those working on a casual or short-term basis, to follow “lawful and reasonable” directions from employers.
This legal requirement has been deemed “implied” by Australian courts in every employment contract. However, directives to return to the workplace must be considered “lawful and reasonable,” except in extreme cases where they conflict with government mandates or other laws.
Employees with legitimate reasons, such as health concerns, can contest returning to the office, and employers are obliged to provide a safe and considered plan for a return.
Failing to comply with such a direction may lead to disciplinary measures, including dismissal.
Consultation required
Consultation is required when a return-to-work directive impacts employees covered by awards or enterprise agreements. The Fair Work Ombudsman emphasizes that consultation involves giving notice, discussing proposed changes, sharing written information, and taking employees’ views into prompt consideration.
Workplace flexibility provisions in employment contracts, awards, or enterprise agreements grant employees the right to request work-from-home arrangements.
The Fair Work Act’s national employment standards also afford employees the right to request “flexible work arrangements” if they meet certain criteria, such as being parents, carers, disabled, or victims of domestic violence.
Employers can refuse flexible work arrangement requests only on “reasonable business grounds” after genuine consideration of alternative solutions.
Since June 6, 2023, employees have had the right to appeal to the Fair Work Commission, which has expanded powers to mediate, recommend, and even arbitrate disputes.
