The COVID-19 Pandemic will most likely result in a greater number of employees making requests to work from home. These requests may be working fully from home, or part of their work week from home.
Under the Fair Work Act 2009, employees who are full-time, part-time, or regular/systematic casual employees (with a reasonable expectation of ongoing employment), with at least 12 months of continuous service and who meet the following criteria, may request a flexible work arrangement including working from home:
- They are the parent, or have responsibility for the care, of a child who is of school age or younger.
- They are a carer (within the meaning of the Carer Recognition Act 2010).
- They have a disability.
- They are over 55 years of age.
- They are experiencing violence from a member of their family.
- They provide care or support to a member of their immediate family or household who requires care or support because they are experiencing violence from their family.
The Act also provides the process that must be followed when an employee requests a flexible work arrangement and how the employer must respond to such a request.
An employer may refuse a request for flexible work arrangement based on reasonable business grounds. The question of what constitutes reasonable business grounds has created some confusion at times for employers and when considering the impact the COVID-19 pandemic has had, this confusion increases as to what would be deemed to be reasonable.
As a number of employers and employees were forced very rapidly into a work from home scenario, the result of this has been that in many cases, both the employer and the employee have now become more familiar with how work from home can actually be managed and that some employees are even more productive with this arrangement.
It will also be apparent in some cases that the mindset that a work from home arrangement would be unfeasible for some employers may no longer be able to be considered this way.
Employers will find it difficult to argue the arrangements as being impractical or costly when they have already had employees working in a work from home arrangement that didn’t present any concerns considered to be reasonable business grounds. The employer would need to evidence why the arrangement would not work post pandemic.
With the legislation requiring employers to only refuse requests based on reasonable business grounds, an employee may make a complaint to a state or federal discrimination tribunal if they consider they have been discriminated against on grounds such as family responsibility, gender or disability. In these circumstances, discrimination tribunals will consider an organisation’s resources, disruption to the business or other employees, and the effect on an employee’s ability to work efficiently.
As COVID-19 has seemingly reduced the ability for an employer to refuse a flexible work request on reasonable business grounds, employers should still assess any request on a case by case basis.
The upside, a post pandemic remote working environment will see a reduction to business overheads and greater productivity.
Should you require assistance with your requests for flexible arrangements, please contact us on email@example.com or 1300 720 004.