Returning to the Office: Rights and Responsibilities

August 9, 2021



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One of the industries most affected by the global pandemic is the labour market. Since March 2020 more people have worked from home than ever before. Interestingly, working from home (WFH) arrangements have proven in many workplaces to not only be possible, but preferred, as they offer flexibility and a better work-life balance for many individuals.

Many employers now face the complex task of transiting their workforce back to the office. COVID-19 precautions together with provisions in the Fair Work Act 2009 (Cth) have brought complexities to employers’ rights to direct their employees’ return to work. Carneys Lawyers’ industrial lawyers are able to advise both employers and employees through this delicate transition.

When can an employee refuse to return to work?

Circumstances where an employee can refuse to return to the workplace are where:

  • they have a reasonable concern about health and safety;
  • they have career’s responsibilities;
  • the employer’s direction to return to work is not legitimate or a sufficient reason.

The obvious grey areas of what are “reasonable concerns” and “legitimate or sufficient reasons” are likely to be the subject of Fair Work Commission proceedings. If you (like many employers and employees) are grappling with these issues, get in touch with Carneys’ expert Industrial Lawyers.

What if an employee wants flexible working arrangements?

Employees have certain rights to negotiate flexible working arrangement under the National Employment Standards (NES).

Requests for flexibility can be made in relation to a change in working hours, patterns of work or, most relevantly in the context of return to work arrangements, the location at which an employee works. 

What is the process for making a request for flexible work?

The request for flexible work must be: 

  • specified in writing;
  • accepted or rejected by the employer in writing within 21 days of receipt;
  • genuinely considered by the employer and only rejected on ‘reasonable business grounds’; and 
  • if rejected, substantiated with legitimate reasons.

What are ‘reasonable business grounds’ to refuse a request?

The concept of ‘reasonable business ground’ includes:

  • disproportionately high costs to the employer to realise request;
  • the employer lacking capacity to realise request;
  • the impracticality of realising request;
  • a projection of reducing efficiency or productivity; or 
  • a projection of negatively impacting customer service. 

If you have been served with a flexible work request it is important you respond in accordance with the NES. Contact the Industrial Lawyers at Carneys Lawyers to ensure you do not fall afoul of the NES.

Incentivising the return to work 

Returning to work should ideally be a mutual decision, so it is a good idea for employers to emphasise the benefits of doing so. Some methods of encouragement can include allowing ‘staggered’ or ‘hybrid’ systems of returning to work offering free meals, reimbursing commuting costs, one-site childcare, or return to work bonuses. 

A caution about overcaution

It is important to remember that whilst WFH and COVID-19 have resulted in extraordinary disruption to many workplaces, employers should not be too hesitant to issues penalties to employees for poor performance or for engaging in inappropriate conduct. No matter the circumstances, employees and employers must remain professional and communicative, especially when navigating the complex issues which arise in return to work plans.

Contact Carneys Lawyers’ expert industrial lawyers for specialist advice about who best to navigate your workplace’s transition back to the office.