Over the past 2 years, many businesses and employees have had to adapt to the new normal of remote working arrangements. It is now something that is part of modern work life. However, as life starts to return to normal, there is a greater prevalence of work being performed at home and at the office. What happens when there is conflict between an employer’s wish to have staff back in the office and an employee’s wish to continue a successful working from home arrangement?
Flexible working arrangements under the NES
Under the National Employment Standards (NES), employees who have been employed for longer than 12 months, and who meet certain requirements (essentially involving obligations to care for others such as children) can request flexible working arrangements. Employers must provide a written response within 21 days and can only refuse a request on “reasonable business grounds”. These can include (but are not necessarily limited to):
- the requested arrangements are too costly;
- other employees’ working arrangements can’t be changed to accommodate the request;
- it’s impractical to change other employees’ working arrangements or hire new employees to accommodate the request; and
- the request would result in a significant loss of productivity or have a significant negative impact on customer service.
If a request is refused, then the reasons must be provided in writing. This means that the reasons must be rational and defendable.
Remote work requests in practice – Hair v State of Queensland (Queensland Health)
Recently, the Queensland Industrial Relations Commission (QIRC) found that an employer’s decision to deny an employee’s request to work remotely full time from interstate was fair and reasonable. Although it related to a Queensland state employee, the case shows:
- that just because an employee was able to perform well when working remotely during the height of the COVID-19 pandemic, it does not automatically give rise to a right to continue to work as such;
- the need to have clear written workplace policies detailing what will be taken into account in determining whether to approve such working arrangements; and
- the importance of providing clear and detailed reasons for such a decision (especially when denying a request) and ensuring that refusing requests are made on reasonable business grounds.
Ms Hair was employed as a Human Resources Advisor and acting Workplace Relations Advisor. In January 2020, she commenced working remotely one day per week under an approved flexible working arrangement. In March 2020, at the direction of her employer, she commenced working remotely full-time in response to the COVID-19 pandemic.
In September 2021, Ms Hair requested a new flexible working arrangement whereby she be able to work remotely full-time from New South Wales because she wanted to relocate there from Queensland with her partner due to his work commitments.
In October 2021, the employer’s Human Resources Manager denied Ms Hair’s request providing detailed written reasons. The reasons included:
- the remote working arrangements were intended to be temporary and that they were transitioning to having employees back in the workplace;
- whilst she had been able to perform most of her duties remotely, there were duties that required face to face interaction; and
- her being located interstate would make it very difficult for her to attend situations that require face to face interaction at short notice.
What did the QIRC say?
The QIRC agreed with the employer’s reasons for the decision and affirmed that it was fair and reasonable. The requirements of the role meant that a permanent remote working arrangement was not feasible for an indefinite period. The QIRC also made note that the employer provided detailed reasons addressing the relevant clauses in its own Flexible Work Arrangements Policy and setting out the relevant considerations.
Conclusion
There is no doubt many benefits that flow from remote working arrangements, and equally there may also be good reasons to have staff “in the office” on a regular basis.
Ensuring that there are clear policy guidelines and rational bases on which a given request can be evaluated creates the greatest level of certainty for both employers and employees, and the potential for greatest benefit.
More information
If you have any queries or would like further information regarding this article, please contact:
Joe Mullavey
Principal
M: 0416 794 061
E: jmullavey@pageseager.com.au
Peter Foster
Associate
T: (03) 6235 5153
E: pfoster@pageseager.com.au
Published: 17 March 2022
