31 Oct 2023While Covid lockdowns are a thing of the past, many Australians have subsequently opted to not return to the office. The latest statistics show that on average, city workers spend one third of their work week at home, with many working from home full-time.
Companies introduce mandatory office days
This leaves offices largely deserted, but many employers want their workers to return to the office. Even the video conferencing company Zoom, which made a fortune during lockdown because so many people worked from home, is now asking its employees to return to the office.
In Australia, a survey found 87 per cent of employers have introduced mandatory office days, with 19 per cent insisting their staff spend five days per week at the office desk. (Please see 87% of Australian companies have implemented mandatory office days for staff, Robert Half Talent Solutions, 9 August 2023.)
Clearly working from home is popular. The survey found that one third of these companies had lost at least one employee due to the mandates, and 40 per cent expect resignations.
Is the direction to return to the office “lawful and reasonable”?
But can employers stop you from working from home? If your productivity is just as good working from home, or even better, can the boss order you to return to the office?
The law tends to treat employers’ interests in running their business as they see fit as outweighing the convenience of employees, whether these workers are permanent, casual, or fixed-term contract.
However, the law recognises that for employers’ directions to employees in this respect to be enforceable, the directions must be “lawful and reasonable”.
Courts have recognised this longstanding principle of employment law, whether or not it is written into an employment contract. (Please see Flexibility in the workplace, Fair Work Ombudsman.)
If the employer provides a considered and safe plan for workers to return to the office, then the law is generally on their side. An employee’s refusal to comply could be grounds for disciplinary action, including dismissal.
Workplace flexibility and employee rights
It could be argued that a return to the office after two years of Covid lockdowns is a major workplace change, and the employer should give notice and consult employees before a final decision is made.
Employees could argue that an order to return to the office is not reasonable if they have health problems or child-minding duties and are fulfilling their work role from home.
Workers who have been with the employer for more than 12 months have the right to request flexible work arrangements due to health or family needs under the Fair Work Act. On 1 July 2023 this was expanded to include parental leave.
Employers must consider this, but can refuse on “reasonable business grounds” including cost, efficiency, productivity or customer service. The Act allows employees to apply to the Fair Work Commission for assistance in resolving the dispute.
If you are assured during a job interview that you can work from home and are relying on this assurance in accepting the job, you should ask that it be written into your employment contract.
