A bold proposal to force Melbourne CBD workers into the office four days a week would be difficult to enforce and could even push employees away, according to leading workplace and employment lawyers.
Former Australian Rules Football star Anthony Koutoufides recently announced his candidacy for Melbourne’s upcoming mayoral election, promising to enact a new return-to-work policy for workplaces within the City of Melbourne if elected.
Under his proposal to rejuvenate the city, workplaces within the council area would need to have staff on-site at least four days a week.
“I know it’s convenient for a lot of people, and I totally understand that as well, but before COVID we never even thought of people working from home,” Koutoufides told 3AW on Monday.
“And now all of the sudden we’ve become comfortable with things.
“But in order to grow, you need to be out there mingling with people, talking with people in the office, to grow rather than being at home.”
The former athlete said he would work with the Victorian government to enact the legislation required to enforce those rules.
Koutoufides’ announcement follows NSW Premier Chris Minn’s recent declaration that the state’s public sector workers should return to the office for at least three days a week.
“It’s gonna take a bit of work, and a lot more understanding of it, and I’d love to be able to talk to the people up in Sydney,” Koutoufides said.
However, David Catanese, partner at law firm Hall & Wilcox and expert in employment law, says it would be “extremely difficult” for the Victorian government, let alone the City of Melbourne, to introduce a mandate for employers to require their employees return to the office.
“That’s because a lot of the rights for employees, particularly government employees in Victoria, are contained in enterprise agreements that are made under the Fair Work Act, which is a piece of Commonwealth legislation,” Catanese told SmartCompany on Wednesday.
“For example, there are provisions in Victorian government enterprise agreements that specifically deal with flexible work requests, including requests to work from home, and so state legislation could not easily or materially change those rights that are in those Commonwealth instruments.”
Charles Power, a partner at law firm Holding Redlich with over 25 years of experience in workplace relations law, shares the same view.
“It would be challenging for the Victorian government to go away on this without the support of the federal government,” he says.
However, if the state government did make CBD workplace occupancy a primary concern, it could still encourage in-person work without relying on federal lawmakers to overhaul the Fair Work Act.
It could “certainly provide incentives for employers to encourage a return to the office for its workforce,” Power adds.
“It might be able to offer some sort of payroll tax exemption, or subsidy, or some sort of positive support for the implementation of those measures,” he says.
“But in terms of something that is mandatory, I think that would be terribly difficult, and even if they were able to achieve it, it would almost certainly be challenged in the courts.”
Pandemic-era measures forcing workers to stay at home also cannot be reversed, says Power, as those extraordinary historic public health powers have well and truly lapsed.
Other barriers are likely to prevent any such return-to-office mandate.
Premier Jacinta Allan has already ruled out rolling back work-from-home measures for the state’s public sector staff, suggesting an even lower appetite for radical measures designed to boost private sector CBD occupancy.
While it would be difficult to legislate such a measure, the experts agree employers are already free to mandate their own return-to-office requirements, within certain parameters.
“There are very few strict legal barriers preventing employers, including private businesses, the state government, and Victorian public entities, from requiring their employees to work from the office in greater proportions, i.e. to come back to the office,” explains Catanese.
“It’s really up to individual employers, including the government, to come up with a policy that best suits their business.”
Catanese and Power broadly agree that workplace disputes regarding return-to-office policies still exist, but are becoming less common as businesses and employees adjust to the post-pandemic landscape.
“Certainly, this time last year, [disputes] were frequent,” Power says.
“We had a lot of clients ringing up, saying they had difficulty implementing a return to the office policy.
“But I think it’s true to say that some sort of equilibrium has developed.”
And some employers believe work-from-office mandates could actually deter high-performing staff, undermining any effort to revitalise central business districts through blanket return-to-office laws.
“We’re seeing that the best workers are looking for some flexibility, and businesses are really asking themselves the question, ‘Do I just want any workers in the office five days a week or four days a week? Or do I want the best workers I can attract working flexibly?’” Catanese says.
“So that is really moderating what employers are mandating of staff, and really we’re seeing a balance being struck.”
Full- and part-time employees now have the right to request hybrid working arrangements from their employers.
For now, Power says employers must commit to “genuine consultation with with the people affected” before outright denying a hybrid working request.
Separately, the Fair Work Commission is also assessing whether the right to work from home should be included in the awards system itself.
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Senior Business Journalist
Focused on the small business sector, David’s work covers the political, regulatory, and economic issues facing Australian entrepreneurs. Prior to joining SmartCompany, he was a reporter for Business Insider Australia. You can follow him on LinkedIn.
