As remote work continues to grow in popularity, many businesses in Australia are grappling with how to manage employees who work from home (WFH).
Whether driven by employee requests, the changing nature of work, or external factors such as the COVID-19 pandemic, the ability to work remotely has become a key issue in many workplaces. However, working from home also raises important legal and practical considerations for business owners.
As a commercial lawyer, I’ve worked with numerous businesses to develop comprehensive WFH policies that are both legally compliant and operationally effective. This article will provide a guide on what to include in your WFH policy, the legal landscape surrounding remote work, whether you must approve WFH arrangements, and current case law that sheds light on the issue.
Do You Have to Approve Working From Home?
One of the most common questions business owners ask is whether they are legally required to approve a WFH request from an employee. The short answer is: it depends on the circumstances.
The Fair Work Act 2009 (Cth) sets out the legal framework that governs many aspects of employment in Australia, including requests for flexible working arrangements. Section 65 of the Act provides certain employees with the right to request flexible working arrangements, which can include working from home. However, this right is not absolute, and employers have the ability to refuse such requests on “reasonable business grounds.”
Who Has the Right to Request Flexible Working Arrangements?
Under the Fair Work Act, the following categories of employees have the right to request flexible working arrangements:
-
Employees who are parents or carers of school-aged or younger children.
-
Employees with a disability.
-
Employees aged 55 or older.
-
Employees experiencing family or domestic violence.
-
Employees who care for someone in their household or immediate family with a disability or chronic condition.
If an employee falls into one of these categories and requests to work from home, you must consider their request. If you decide to refuse, your refusal must be based on “reasonable business grounds.”
What Constitutes “Reasonable Business Grounds”?
Employers are entitled to refuse a request for WFH if they can demonstrate reasonable business grounds, which might include:
-
The inability to accommodate WFH due to the nature of the employee’s role (e.g., if the job requires on-site presence, such as in retail or manufacturing).
-
A lack of suitable technology or infrastructure to support remote work.
-
Concerns over health and safety issues that cannot be adequately managed in a WFH setting.
-
The potential for significant disruption to business operations.
It is important to remember that any refusal must be carefully considered and documented, as employees may challenge refusals through dispute resolution mechanisms in the Fair Work Commission or through internal workplace grievance processes.
Current Law and Case Law on Working From Home
The legal landscape surrounding WFH requests continues to evolve, particularly in the wake of COVID-19, which accelerated the shift to remote work across Australia. Several important legal principles have emerged in recent years:
1. WFH During the Pandemic
During the COVID-19 pandemic, many businesses shifted to remote work to comply with public health directives. In this context, WFH became more of a necessity than a choice. This temporary situation led to a rise in employees asking for permanent WFH arrangements after the pandemic ended. However, the law governing whether employers must continue to allow WFH is the same—subject to reasonable business grounds.
2. Fair Work Ombudsman Guidance
The Fair Work Ombudsman has issued guidance indicating that businesses should be open to flexible work arrangements, but only when practical and appropriate for the business. The guidance makes it clear that employers are not required to grant every WFH request but should engage in discussions with employees to see if an arrangement can be reached.
3. Case Law: Hsiao v Fazarri
The Federal Circuit Court decision in Hsiao v Fazarri [2017] FCCA 2108 provides an example of how WFH disputes can arise. In this case, an employee sought permission to work from home after the birth of her child, but her employer refused.
The employee successfully argued that the employer failed to properly consider her request under Section 65 of the Fair Work Act. The court found that the employer had not provided sufficient reasons for the refusal and awarded compensation to the employee.
This case highlights the importance of properly considering WFH requests and providing clear and legitimate reasons for refusal if necessary.
What Should Be Included in a Working From Home Policy?
A robust WFH policy is essential to ensure that both employers and employees understand their rights, responsibilities, and expectations when working remotely. Below are key components that should be included in any WFH policy for businesses:
1. Eligibility and Approval Process
Clearly outline who is eligible to request WFH arrangements and the process for making such a request. Include details about:
-
How to apply for WFH.
-
Who will assess the request (e.g., HR, direct manager).
-
What factors will be considered (e.g., the nature of the job, performance standards, operational needs).
2. Roles and Responsibilities
Clarify the responsibilities of both the employer and the employee while working remotely, such as:
-
Employee responsibilities: Maintaining regular communication, adhering to company policies, meeting productivity standards, and following agreed-upon work hours.
-
Employer responsibilities: Providing necessary equipment (where applicable), offering support for technological issues, and ensuring workplace health and safety.
3. Health and Safety Obligations
Employers are required to provide a safe working environment under the Work Health and Safety Act 2011 (Cth), even when employees work from home. Your WFH policy should include provisions on:
-
Assessing the safety of the home workspace (e.g., ergonomic considerations, lighting, and electrical safety).
-
Reporting work-related incidents or injuries while working remotely.
-
Guidance on taking breaks and managing fatigue while working from home.
4. Confidentiality and Data Security
Data security is a major concern when employees work outside the office. Your WFH policy should include measures to protect sensitive business information, such as:
-
Ensuring employees use secure networks and VPNs when accessing company systems.
-
Guidelines for storing, sharing, and disposing of confidential information.
-
Password management and multi-factor authentication for access to business systems.
5. Technology and Equipment
Clarify what equipment and technology the business will provide (e.g., laptops, monitors) and what the employee is responsible for (e.g., internet connection, phone). Ensure that the policy outlines:
-
Who is responsible for maintaining equipment.
-
Procedures for reporting technical issues.
-
Expectations for use of company-provided technology.
6. Performance Monitoring
To ensure that productivity and accountability are maintained while working remotely, the WFH policy should set out how performance will be monitored. This could include:
-
Regular check-ins with managers.
-
Tracking progress on tasks and projects.
-
Time-tracking tools or performance metrics (if applicable).
7. Duration and Review of WFH Arrangements
Specify whether WFH arrangements are temporary or permanent and how they will be reviewed. For example:
-
If WFH is allowed as a short-term solution, state when the arrangement will be reviewed or terminated.
-
For long-term WFH, indicate that regular reviews will be conducted to assess its effectiveness and the employee’s performance.
Conclusion
As the demand for flexible working arrangements continues to grow, business owners need to be proactive in addressing WFH requests and ensuring that their policies comply with Australian law.
While you are not required to approve every WFH request, particularly if it conflicts with business needs, it’s essential to carefully consider each request and document your reasoning.
By developing a clear and comprehensive WFH policy, you can ensure that your business remains compliant while fostering a productive and flexible work environment.
If you are unsure how to navigate WFH requests or need assistance drafting a legally sound WFH policy, consulting with a commercial lawyer can provide the guidance you need to protect your business and meet your legal obligations.