Do I have a legal entitlement to work from home?

Mandatory office days

It was discovered by Robert Half Talent Solutions (2023) survey that 19% of Australian companies are insisting employees are in their office 5 days a week. However, this is not always sustainable as it is estimated that one-third of companies have lost one employee due to these policies.

Homes v Australian Carers Pty Ltd Case

In a recent case within the Fair Work Division of the Federal Circuit and Family Court, it was concluded that an employer did not infringe upon its employees’ workplace rights by rejecting a request for remote work.

A Disability Support Coordinator pursued an adverse action claim against her employer. Among her allegations was the assertion that she possessed a workplace right to work from home and that the employer had engaged in bullying and discrimination by unjustly denying this request.

However, the Judge concluded that there was insufficient evidence to establish that the employee possessed either a legislative or contractual right to work from home and it was not unreasonable to reject the flexible working arrangement request in consideration of the business requirements.

Key takeaways

The decision to refuse remote work ultimately rests with the employers. In saying that, there must be caution exercised in reasonably considering any request.

While employers can refuse work-from-home requests and instruct employees to work on-site, it is crucial to acknowledge that such directives must be ‘lawful and reasonable.’ A directive is considered lawful and reasonable unless it contradicts a government directive (e.g., those issued during the COVID-19 pandemic) or other applicable laws.

Employees with roles suitable for remote work and a valid justification may challenge the reasonableness of a directive. Notably, specific employees possess the right to request flexible working arrangements under the National Employment Standards (NES).

Working from home has become an attractive benefit for companies to offer their employees. However, for these arrangements to be enforceable, they must be stringent and contractual. If you are offered these arrangements in an interview, it is best to request that in your employment contract.

Need advice?

At Greenhalgh Pickard, our Employment Law professionals can verify the validity and enforceability of your employment contracts and aid you in challenging an illegitimate claim.