Work From Office Directive Thwarted By Flexible Work Arrangements Order

Employers who require employees to work from the office, who have historically worked from home and have children, may find their efforts frustrated by successful applications for flexible work arrangements under the Fair Work Act 2009 (Cth)(FWA). This is illustrated by the decision of Laura Kliffen v Repeat Employment Services Pty Ltd [2026] FWC 1766.

Background

The relevant employee was employed as a customer experience and implementation manager working four days per week. The employer issued a direction requiring her to work in the office two days a week of her choice, in circumstances where she had historically worked from home.

The employee then made a request for flexible work arrangements under section 65 of the FWA seeking to:

• work from home
• limit the requirement for her to attend the office to fortnightly on a Monday, and
• enable her to commence work in the office at 10am.

The employer compromised and allowed the employee to work in the office one day a week; however, the employee remained unsatisfied with this outcome. The employer then accommodated the employee working from home for a period that was subject to a review. When this review occurred, the employer concluded the arrangement was unsuitable and required the employee to work from the office.

The employer and employee could not come to an agreement, so the employee made an application to the Fair Work Commission.

Decision

The Commission ordered the employer to allow the employee to work mainly from home on the basis that the requirement to work from the office did not adequately account for her particular circumstances.

The employee submitted:

• her role involved assisting clients of the employer providing technical support via telephone, email and live chat,
• her client interactions with clients were carried out through online tools in Salesforce,
• her team consisted of eleven people and, of these, six had hybrid working arrangements,
• her successfully working from home had proven there was no adverse effect on her productivity, and
• her role had been performed remotely for the entirety of her employment.

The employer submitted:

• the purpose of requiring the employee to work in the office more was to prioritise culture, cohesion, training and support across all offices,
• it was impracticable to change other employees’ working arrangements to continue to accommodate the employee’s flexible arrangements, and
• it had an obligation to apply fair working practices to all its employees.

Commissioner Mathieson noted that it took up to an hour and half each way for the employee to commute from her home to the office and the employee had a caring role for her children at dinner time, with one of her children having special needs. Being home later in the evening due to the lengthy commute would interfere with this role.

It was also unclear to the Commissioner from the evidence as to how other employees’ working arrangements would need to change to accommodate arrangements for the employee, when she had been working remotely since 2007. He appreciated that face-to-face interactions have benefits, but in this case only a small number of the employee’s team members were actually based in the office.

He stated:

“While the respondent may desire consistent working practices across all employees, individual employees may confront differing circumstances and some of those circumstances attract rights under the Act and what is “fair” may involve extending additional support and flexibility to an employees in certain circumstances”.

In light of this, the Commission ordered the employee was permitted to continue working from home, subject to a requirement to attend the employer’s office one day per fortnight on a day nominated by the employee. The employee was permitted to commence work at a time no later than 10.30am on an office day and, where her later start resulted in her working fewer than her ordinary hours on those days, she was required to make up the time across the remainder of the fortnight.

Implications

Whilst employers still generally have significant flexibility in requiring employees to work from the office, employers should be aware that employees who have attributes in section 65(2) of the FWA, such as being parents, having a disability or being 55 or older, may have rights to request flexible working arrangements. When such applications are made, it is important that employers be in a position to demonstrate reasonable business grounds for requiring employees to work in the office.

Employment Practices Liability Insurers can expect to see more of these cases in response to employers requiring employees to work in the office.

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