Isn’t it about time we give every employee the right to work from home?
In the wake of the work-from-home revolution, it’ll be much more difficult for an employer to justify refusing flexible working arrangements.
Last week, Christian Porter urged employers across Australia to bring their employees back to the office as quickly as possible.
Obviously, this is another great sign that life in Australia is slowly returning to normal, but is a hasty return to the office really what we all want?
For more than seven months now, most office workers from the Melbourne CBD have been working from home.
While this has no doubt been challenging for some, particularly with the stringent social restrictions that have also been in place, it certainly hasn’t been without its perks.
We’ve been spared the long commutes into work. The human game of Tetris on the tram each morning during peak hour. The lengthy and unnecessary meetings about something that could have been covered in a short email.
And surely nobody actually misses that one office extrovert intent on sharing every detail of their weekend before you’ve had a chance to grab your morning coffee?
Instead, many of us have enjoyed more sleep, more exercise, more time with family, and more autonomy in our work.
And yet, as if by magic, we’ve still been able to attend meetings (by video), collaborate with colleagues, meet our deadlines and get our work done.
As an employment lawyer, I’ve spent years watching countless requests for flexible working arrangements be rejected by employers.
Typical reasons for doing so include ‘we just don’t do that here’ or ‘you won’t be as productive at home’ — neither of which are particularly compelling reasons in their own right and usually come with little or no justification.
Surely the last seven months have helped to dispel the myth propagated by some employers that office jobs can’t be done from home.
In fact, I suspect there are people working from home today who had previously been told by their employer that it was simply impossible for them to do so.
From a legal perspective, section 65 of the Fair Work Act 2009 (Cth) allows an employee to request flexible work arrangements in certain circumstances. These include to accommodate parental or carer responsibilities, or where the employee has a disability, is over the age of 55, or is experiencing family violence.
However, this section does not actually entitle an employee to receive flexible work arrangements, only to request them.
This request can then be refused by the employer on “reasonable business grounds”. These can include that they would be too costly, would result in a significant loss in efficiency or productivity, would have a negative impact on customer service or that the arrangements of other employees could not be changed to accommodate the request.
While the Fair Work Act 2009 (Cth) and modern awards regulate how a request is made and a response is given, there is little recourse available to an employee if a request is denied by an employer.
Why, as a society, have we restricted the right to request flexible working arrangements to these limited circumstances?
Why shouldn’t all employees have the right to request flexible working arrangements?
In fact, why should employees not have an entitlement to flexible working arrangements, specifically to work from home?
Given the significant investment in remote working arrangements made by employers during the COVID period, it has never been easier for employees to connect with colleagues, customers and suppliers from home.
With video conferencing, cloud-based document management software and electronic signatures, there’s no reason why most employees can’t do everything they used to do at the office from home.
I suspect that the fear harboured by most employers when it comes to employees working from home is the loss of supervision and control.
However, when employees feel trusted, valued and supported, they don’t need to be controlled, at least not in a physical sense.
Employees will work at their best when they’re comfortable in their environment and given the confidence of their employer to complete their work autonomously.
For employers that are genuinely concerned or impacted by a reduction in efficiency, productivity or customer service, they always retain the same ability to manage and discipline an employee for unsatisfactory performance that they always did.
As such, if an employee is not able to be as efficient or productive at home, they risk the same disciplinary consequences they always have, including termination of employment.
However, with the right structures in place, the benefits of working from home will always be mutual.
Employees achieve a better work-life balance, have greater flexibility and spend less of their hard-earned on public transport, fuel and dry cleaning.
On the other side, employers enjoy the benefits of happier workers (including increased productivity), less turnover and reduced overheads in maintaining costly office space and providing fringe benefits such as motor vehicle allowances.
Obviously, not all jobs can be performed from home, but COVID-19 has given non-essential businesses an incredibly unique opportunity to establish and monitor working from arrangements across entire workforces.
Given how successfully many businesses have adapted, it’s going to be much more difficult to justify a refusal for flexible working arrangements for an employee who has demonstrated an ability to effectively perform their role from home for the last seven months.
And for those who enjoy the office life, keep turning up! A right to work from home, like most workplace rights, can be a right that you exercise only if you want to.
So Australia, isn’t it about time we give every employee, where possible, the right to work from home?
