‘Is it legal for my boss to make us come into the office?’

Staff who enjoy working from home probably don’t want to know what Aussie lawyers have to say about their right to abandon the office.

Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters, Alison and Jillian Barrett from Maurice Blackburn, explain the legalities of employers culling work from home rights.

QUESTION: My CEO has demanded that all staff work from the office full-time unless we have specific reasons not to, with one of the only reasons being if we’re sick with an infectious virus (and then we need a doctor’s note). People with childcare issues or who have a long commute have been told to find suitable arrangements to deal with those issues. Before Covid, we all worked in the office full-time and had no flexibility but like many people we began to WFH full-time and got used to it. Now they want to pull out the rug from underneath us! I have a long commute – 1.5 hours each way – and another colleague has moved interstate! Can they just demand we all come back into the office? – Melissa, Vic

ANSWER: It’s been almost four years since Covid changed our way of working – almost overnight.

Your CEO may have been surveyed (or may have read) a recent report by KPMG that showed nearly two-thirds of 1300 CEOs surveyed globally expect a full return to the office in the next three years.

Is your boss’s demand that you return to the office full time legal? The short answer is yes.

There is an implied term in all employment contracts requiring employees to follow the ‘lawful and reasonable’ directions of their employer, unless your employment contract, workplace agreement (such as an enterprise bargaining agreement) or modern award expressly states otherwise.

In most cases, a direction to return to work from the office full time will be both lawful and reasonable.

If your award, enterprise agreement or employment contract contains ‘workplace flexibility’ provisions, you may have rights to work from home or to make a request. You should review the relevant documents and follow the process it outlines for requesting flexibility.

In addition, the National Employment Standards under the Fair Work Act provide minimum entitlements for employees in Australia.

Employees who have been with their employer for at least 12 months can request a change to their working arrangements but only for certain circumstances, a long commute alone won't cut it. Picture: iStock

Employment contracts or other workplace instruments cannot exclude or provide for conditions that are less than those in the national standards.

One of the entitlements is that full and part-time employees with particular circumstances, who have been with the employer for at least 12 months, can request a change to their working arrangements to accommodate those circumstances.

The ‘particular circumstances’ are the employee is:

• The parent, or have responsibility for the care, of a child who is school aged or younger

• A carer

• A person with a disability

• 55 or older

• Pregnant

• Experiencing family and domestic violence

• Providing care or support to an immediate family or household member who is experiencing family and domestic violence

Casual employees can request flexible work arrangements if they meet one of the above criteria, have been working for the same employer regularly and systematically for at least 12 months and there’s a reasonable expectation of continuing work with the employer on a regular and systematic basis.

Parents or those who have responsibility for the care of a school-aged child are entitled to request to work from home. Picture: iStock

Your request for flexible working arrangements must be in writing, explain what changes are being asked for, and the reasons for the requested change.

Your employer must respond in writing within 21 days.

An employer can only refuse a request on ‘reasonable business grounds’, and where they have discussed the request with the employee, genuinely tried to agree to alternative arrangements to accommodate the employee’s circumstances, and considered the consequences for any refusal.

Reasonable business grounds can include:

• The request is likely to result in a significant loss in efficiency or productivity, or would have a significant negative impact on customer service

• The employer’s circumstances, such as the size and nature of the business, and

The requested arrangements being too costly

If your employer refuses your flexible work request, then you can apply to the Fair Work Commission for help. The Commission will attempt to resolve such disputes by mediation, conciliation, or by making a recommendation, and, if required, by arbitration.

If your employer fails to make reasonable adjustments, you may also have options under anti-discrimination law.

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor. If you have a legal question you would like Alison and Jillian to answer, please email [e-mail]. Get more from Alison and Jillian on their Facebook page.