ARTICLE
10 April 2024

What are my rights regarding flexible working arrangements and working from home?

CO
Carroll & O'Dea

Contributor

Established over 120 years ago, Carroll & O’Dea Lawyers offers expert advice and strong advocacy for clients. With a commitment to high-level service and legal expertise in all areas, they blend tradition with modern skills.
Examines employee's rights regarding flexible working arrangements & working from home.
Australia Employment and HR
To print this article, all you need is to be registered or login on Mondaq.com.

You might have noticed an increased requirement for you to return to the office after a few years of working remotely as a result of the COVID-19 pandemic. For many people, some working benefits provided by your employer now include greater flexibility for working arrangements including the ability to work from home for some of the time in a hybrid working model. You might experience difficulty during the transition back to the office, and it is important to know your rights when it comes to requesting any flexible working arrangement from your employer. This is particularly important because significant changes were made to the Fair Work Act 2009 (Cth) last year which enhanced employee's rights in this area 1. This article examines employee's rights regarding flexible working arrangements and working from home.

How do I make a request for flexible working arrangements?

As a first step, if you wish to work from home, you should first check what policy or policies your workplace might have in place regarding flexible working arrangements and what you may be entitled to negotiate.

You should always seek to negotiate an agreement with your employer in writing, starting with you making a written request for your flexible working arrangements. If you are a new employee, you should ensure that any agreed working from home arrangement is formally documented before commencing your employment and is a part of any contract you might sign.

Most employees do not have an express right to work from home and can be required by their employer to work from the office. However, there are certain categories of employees that can rely on additional legal rights to strengthen a request to work from home. In certain circumstances, it may even be unlawful for your employer to refuse your work from home request.

Can everyone request flexible working arrangements?

Only eligible employees can request a flexible working arrangement. The request is made pursuant to section 65 of the Fair Work Act 2009 (Cth) (FWA) 2.

You may be eligible if you have been employed for over 12 months by an employer and fall into one of the following categories:

  • pregnant;
  • a parent of a school-aged child;
  • a carer;
  • have a disability (including an illness);
  • are 55 years of age or older;
  • experiencing family and domestic violence; or
  • provide care or support to an immediate family or household member who requires care and support because they are experiencing domestic and family violence.

Your request for a flexible working arrangement must be made in writing and you need to set out the details of the changes you seek and the reason for the request for the change2.

How long can the process take?

Section 65 of the FWA confirms that your employer has 21 days to respond to your request for flexible working arrangements.

Your employer can refuse the flexible working arrangement request, and there is no requirement for your employer to agree to your request. However, if refused, your employer must set out the grounds for the refusal.

If you as an employee have previously demonstrated that you can work from home productively, it may be more difficult for your employer to rely on reasonable business grounds for denying your request.

If you have a dispute with your employer over this issue, it is possible for the Fair Work Commission to assist the parties to negotiate a settlement or, in an extreme situation, arbitrate on the dispute.

Do I have discrimination rights?

You as an employee also have protections under federal or state anti-discrimination laws 3 which generally prohibit unlawful discrimination on the grounds of protected attributes, the most pertinent of which are probably these:

  • sex;
  • family or carer's responsibilities;
  • age;
  • disability and pregnancy.

Your employer may be acting unlawfully if they refuse your work from home request because of a protected attribute. The general protections provisions under Part 3-1 of the FWA furthermore prohibit your employer from taking any retaliatory action against you as an employee because you have made a flexible work request under the FWA, or made an enquiry in relation to your employment. For instance, it is unlawful for an employer to dismiss an employee because they made a flexible work request or requested to renegotiate the location of their work to include working from home.

Where working from home arrangements are not agreed, a direction from your employer to return to the office is likely to be lawful and reasonable if it is in line with current health recommendations and public health orders, and your employer provides you with a safe working environment.

Any failure by you to comply with a lawful and reasonable direction could result in disciplinary action being taken against you by your employer. If you are dismissed, you may have a right to pursue an unfair dismissal claim or general protections claim, however, this is a complex area of law and you should obtain legal advice from an expert employment lawyer to get advice about whether these circumstances apply to you in your case.

Footnotes

1 Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth); changes relating to flexible working arrangements commenced 6 June 2022.

2 Fair Work Act 2009 (Cth) s 65.

3 See Age Discrimination Act 2004 (Cth), Australian Human Rights Commission Act 1986 (Cth), Disability Discrimination Act 1992 (NSW), Racial Discrimination Act 1975 (Cth), and Sex Discrimination Act 1984 (Cth).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

ARTICLE
10 April 2024

What are my rights regarding flexible working arrangements and working from home?

Australia Employment and HR

Contributor

Established over 120 years ago, Carroll & O’Dea Lawyers offers expert advice and strong advocacy for clients. With a commitment to high-level service and legal expertise in all areas, they blend tradition with modern skills.
See More Popular Content From

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

Learn More