Employers Winding Back Work from Home Flexibility

KEY TAKE OUTS:

• There are an increasing number of employers who have been reversing the flexible arrangements utilised during the COVID-19 pandemic and forcing employees to make a gradual return to the office.
• There are potential circumstances outlined in awards, enterprise agreements or employment contracts that entitle an employee to flexible working arrangements.
• It is anticipated that for those employees who remain working at home, their activity will be monitored by employers to ensure their working hours are accounted for.

Due to the impacts of COVID-19, working from home (‘WFH’) has become the new normal for many Australian workers. However, there has been a recent trend of employers winding back the flexible arrangements implemented during the pandemic to force employees back into the office.

Additionally, if employers do retain WFH privileges, there are increasing instances where employee’s activity is being tracked while online at home. This information may give rise to reasons for the dismissal of employees.

Reducing Working from Home Hours

The Commonwealth Bank of Australia (‘CBA’) is an example of an employer who has directed employees to return to the office for 50% of their working time. This policy is being challenged by the Finance Sector Union, who have taken it to the Fair Work Commission.

They are alleging that CBA breached their workplace obligation by failing to consult with employees regarding a major workplace change. However, even if the Fair Work Commission finds that CBA must consult with employees, they are not obliged to change their policy.

Unfortunately, many Australians who enjoy the benefits of WFH, must follow the directions of employers if they are lawful and reasonable. This includes directions to return to the office except in extreme cases where there is a relevant law or where employees may have a legitimate reason to work from home.

Flexible Working Arrangements

If your award, enterprise agreement or employment contract contains provisions relating to workplace flexibility, you may have grounds to request to continue or remain working from home. The National Employment Standards also sets out circumstances where the employee can request flexible work arrangement if they have been with the employer for at least 12 months. Some of these circumstances may include where the employee is a parent or carer, has a disability, is over 55 years of age or is pregnant.

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Tracking conduct while working from home

For employees who are allowed to remain working from home, their activity on their computers may be tracked by their employers. One of the most recent decisions out of the Fair Work Commission concerns Insurance Australia Group (“IAG”) and a former WFH employee. The Employee was recently fired from her workplace based on her conduct while WFH. She worked at IAG for 18 years, however, the decision to terminate her employment was made after her company used keystroke technology to track her hours WFH.

She received a formal warning about her conduct in November 2022 due to low output and productivity. She was subject to a review in December which found that of her 49 working days between October and December, she started late on 47 days, finished early on 29 days, and performed zero hours of work on 4 days. This led to her effective dismissal.

The employee appealed this decision, alleging it was unfair dismissal, however, this argument was rejected by the Fair Work Commission. This ruling made by the Fair Work Commission indicates that employers are legally allowed to track employees conduct while working from home and can use this information as evidence in terminating an employee. We consider that this ruling will not be the only one of its kind and we suspect that there will be an influx of applications through the Fair Work Commission regarding employers conduct in requesting employees return to the office.

How Coutts can help Employers

If you are an employer who wishes to implement a policy regarding working from home in your workplace, feel free to reach out to our employment team at Coutts Lawyers and Conveyancers. We are more than happy to assist you in ensuring you meet your obligations and legal requirements in implementing this policy.

How Coutts Can Help Employees

Similarly, if you are an employee who has been directed to return to the office or has been terminated based on your conduct while working from home, please contact our employment team. We can assist you in ensuring your employer has met all the legal requirements of your award, enterprise agreement or contract.

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