Business has made clear its rejection of a codified right for employees to request working from home, but some bosses might welcome clarity about a workplace revolution that seems unlikely to be reversed any time soon.
That’s, of course, if the Fair Work Commission delivers clarity on the other half of the deal – the right for employers to say no.
The Covid-19 lockdowns dramatically shifted the balance of power about where and when white collar work can be carried out; employees are increasingly comfortable with asking for WFH a couple of days a week, while employers have found it hard to make the case for staff to be in the office Monday to Friday if the nation is to be more productive.
Since the pandemic abated, companies have wrestled with how to manage the new hybrid world. Some have accepted reality and adjusted, recognising that for parents, especially mothers, WFH can transform their professional and personal lives – and encourage workplace loyalty. It’s been an astonishing shift, one made possible in an era of extraordinary developments in technology, but one that can’t be ignored by employers – or the commission.
While the right to request is already in some enterprise agreements – and many workers just ask for it anyway – the commission’s eventual rulings would impact about two million people, but more importantly become a template across the economy.
On the one hand, business hates the idea of regulation in this area, yet the commission could do employers a favour if it clarified the circumstances when an employer could legally reject a WFH request.
At present, many employers feel hamstrung, fearful of saying no even when hybrid arrangements don’t work in their operation. A more precise ruling from the commission about what is “reasonable” in business terms would be useful, although history suggests that when it comes to workplace law, determining what is “reasonable” is tricky.
The commission has flagged that it will seek to define what WFH means. That should give employers a chance to argue for strict rules around the location of the remote work and availability by phone or otherwise of the remote worker. For example, whether workers must always be in a home office, not down the street at a cafe.
The commission will examine how WFH interacts with the right to disconnect laws, but surely that’s a redundant question. If WFH operates correctly, it should involve agreed work hours and the disconnect laws would apply in the same way as they do to those working in the office.
The same goes for overtime; managers will have to make the same judgments and calculations they make now about whether to ask a staffer in the office to work overtime. Indeed, it is likely companies could become much tougher in decisions about requiring extra hours from a WFH worker.
The intensity of work in the home office might increase with less opportunity for overtime, but that trade-off might well suit employees if, in exchange, they have a legal right to work from home.
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