Can Australian employers force staff back to the office? Here’s what the law says

Zoom, the video-conferencing vendor whose fortunes soared with the pandemic-driven shift to working from home, has reportedly told its staff to get back to the office – for at least two days a week, if the commute is no more than 80km.

It’s part of a trend of employers winding back the work-from-home flexibility that enabled most to keep operating through the pandemic in 2020 and 2021.

In Australia, close to 90% of employers have implemented mandatory in-office days, according to a survey of 300 hiring managers commissioned by recruitment agency Robert Half. The survey shows 19% insisting on five days a week, 28% on four days, and 26% on three days. Almost a third of respondents reported at least one employee quitting in response.

Particularly for parents and younger workers, working from home is not something they will readily give up.

Which raises the question: can an employer, having first directed employees to work from home, now turn around and mandate they don’t?

In many cases, the short answer is yes – though some people have a stronger case to argue for flexible work – and correct procedures must be followed.

Is it a ‘lawful and reasonable’ direction?

Whether employed permanently, as a casual or on a short-term contract, individuals are required to follow “lawful and reasonable” directions from employers. Even if this isn’t stated specifically anywhere, Australian courts have ruled this requirement is “implied” in every employment contract.

A direction to return to the workplace will be lawful and reasonable except in extreme cases – for example, where it is contrary to a government directive or another law.

If an individual can perform their role at home and have a legitimate reason to do so – such as an underlying health issue – they may have grounds to argue a directive to return to the office is not reasonable.

But a detailed and considered plan requiring employees to return to the workplace safely will be lawful and reasonable. Failing to comply with this direction may be a valid reason for disciplinary action, including dismissal.

Is consultation required?

If an employee’s work is covered by an award or enterprise agreement, they can collectively assert their right to be consulted, on the basis that a return-to-work order constitutes a “major workplace change”.

The Fair Work Ombudsman says consultation requires giving notice, discussing the proposed changes, providing written information and giving “prompt consideration” to any matters raised by employees and their representatives.

Even though the employer ultimately doesn’t need consent, the consultation still needs to be genuine and properly consider employees’ views, following the processes set down in the applicable award or agreement.

This is the issue in the dispute over the Commonwealth Bank of Australia directing employees to be in the office 50% of the time. The Finance Sector Union is challenging this in the Fair Work Commission, arguing the bank breached its obligation to consult. So even if the commission agrees, the policy won’t necessarily change.

What about flexible work arrangements?

If an individual’s award, enterprise agreement or employment contract contains “workplace flexibility” provisions, they may have rights to work from home or to make a request.

In addition, the national employment standards under the Fair Work Act give employees the right to request “flexible work arrangements” if they’ve been with the employer for at least 12 months, and:

• are a parent or carer of a child of school age or younger
• a carer
• have a disability
• are at least 55 years of age
• are pregnant
• are experiencing family or domestic violence, or caring or supporting an immediate family or household member experiencing family or domestic violence.

Casual employees have similar rights if they have been working regularly and systematically for at least 12 months and have a reasonable expectation of continued work on the same basis.

Employers who get a request for flexible working arrangements need to respond in writing within 21 days.

An employer can only refuse a request on “reasonable business grounds”, and where they have genuinely tried to agree to alternative arrangements to accommodate the employee’s circumstances, and have considered the consequences for any refusal.

Reasonable business grounds include such factors as the size and nature of the business. These include the request being too costly and having a significant adverse effect on efficiency, productivity or customer service.

As of June 6 2023, employees have had a right of appeal to the Fair Work Commission, which has new, more expansive powers to resolve such disputes by mediation or conciliation, or by making a recommendation, and, if required, by arbitration.

Reasonable adjustments for employees

The right of review for flexible work arrangement requests, though limited to certain employee categories, could well become a hotly contested area.

If an organisation mandates their workers return to the workplace – whether exclusively or in part – the employer needs to provide clear guidelines. The “humane way” to introduce such a policy (regardless of any legal requirement) is to consult with employees over the change.

If an employee seeks a flexible work arrangement, the employer needs to actively engage with them and give them opportunities to provide supporting evidence regarding any special circumstances. That way, they can accommodate employees – so far as is practicable – and if required, make reasonable adjustments.

In sectors with persistent labour shortages, employees will have more leverage to have their views heard and negotiate and, in some cases, even request a review.

Giuseppe Carabetta is an Associate Professor at the University of Technology Sydney. This article was originally published on The Conversation.