Working from home directions are finally coming to an end in the eyes of the government. Official pandemic-driven public health orders and social distancing laws saw an estimated two thirds of Australians working remotely from home offices, kitchen tables and couches. Even working from bed became popular, 72% of Americans saying they had done so during the pandemic. In June 2021, 67% of families surveyed by the Australian Institute of Family Studies were working from home (WFH) either ‘sometimes or always’, compared to 42% pre-COVID, while ABS data revealed a smaller yet still significant rise of 10% in WFH over the 12 months to August 2021.

There is no doubt the allure of flexible working or a ‘hybrid model’ has proved irresistible. About 42 per cent of employed Australians want WFH provisions to remain while 14% want to increase the amount of time they work remotely, another ABS survey found.

While organisations everywhere knuckle down to devise their ideal flexible work models, employees are being urged against trying to work remotely on a permanent basis. Productivity Commissioner Peter Achterstraat this week warned those who attempted to do so risked losing their jobs, and instead voiced his support for hybrid work by saying he was “very keen for people to get back in the office two or three days a week”. Permanent WFH conditions would lead to “no new thinking” and diminish job roles to the stage where they “could be done offshore”, Mr Achterstraat said, while physical attendance at the office several days a week would maintain the  benefits of bouncing ideas off colleagues, make developing new ideas easier, and foster better relationships with bosses and managers while boosting what he termed “innovation productivity”.

Beware the Law

But with many businesses embracing flexible working for the first time, employment lawyers are advising employers ensure they are fully across the legalities involved – especially when breaches of certain regulations can incur penalties of tens of thousands of dollars.

Here is an overview of main rules and regulations around flexible working.

It's not only about picking up the kids

Flexible work allowances covered by the Fair Work Act 2009 encompass more than family and parental responsibilities. Workers able to request flexible conditions under the act include those with a child of school age or younger, as well as:

  • Carers

  • The disabled

  • Anyone over 55 years of age

  • Those suffering violence at the hands of a family member or who are caring for such a victim in their immediate family or household.

Requests must be made in writing, employers need respond in 21 days and applicants must have been employed permanently for 12 months continuously, or casually for periods of 12 months at a time.

Modern awards: beware the devil in the detail 

Employers who receive requests for flexible arrangements from award-covered employees are required to comply with any additional requirements under that person’s particular award. Also, allowing the request or not depends on subjective circumstances. According to PCC Employment Lawyers, the impact of the huge shift towards flexible work arrangements during the pandemic has made it easier for employees who worked productively from home during that time to argue they should continue to do so, creating a situation where it could be unreasonable for the employer to deny their request. However, an employer may also argue that while a WFH model succeeded during the pandemic, the nature of their business meant it would not be feasible post-COVID.

Work Health and Safety laws & working from home

The law does not differentiate between official workplaces and offices or a person’s home in cases where work is permitted to be done in both. This means if an employee who is officially allowed to work from home injures themselves inside their household boundaries while doing so, they can be awarded compensation for medical treatment and more. Such a case occurred in relation to a Telstra employee who fell down the internal stairs of her house during working hours several years ago.

 Individual Flexibility Agreements (IFA)

Different to flexible working arrangements detailed above, an IFA is made under either a modern award, enterprise agreement or other registered agreement. The IFA means an employer or employees covered by an award can agree to change clauses around such factors as overtime entitlements if it provides an employee with the desired flexibility. Both parties must freely agree to the IFA. Additionally, an IFA cannot leave an employee worse off financially. Strict requirements surround implementing, creating and terminating IFAs and lawyers advise seeking advice around any uncertainties.

Alongside these regulatory complexities and compliance, workplace analysts are advising employers weigh up the pros and cons of flexible conditions and take steps to mitigate any potential drawbacks. On the plus side, granting flexible work requests may lead to happier and more productive employees, or savings on renting large office spaces and buying the equipment needed to accommodate a full-time workforce. Similarly, employers who fear a flexible workplace could have negative effects - such as robbing employees of the creative inspiration that only comes through working face-to-face -could set fixed days in the office to foster collaboration, and then ensure they communicated effectively and used the best technologies to do so when their workforces were operating remotely.