What are my rights regarding flexible working arrangements and working from home?
Published on April 10, 2024 by Peter Punch
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 change[2].
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.
Please note that this article does not constitute legal advice. If you are seeking professional advice on any legal matters, you can contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will be able to assist you.
Please note that Carroll & O’Dea Lawyers has published a more detailed article on the 2023 changes to the law on flexible working arrangements, which you may find of additional assistance in understanding your rights in this area.
[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).
