Remote working requests and COVID-19: a legal refresher


Employee requests to work from home are likely to increase post-COVID-19. Legally, do you have to consider this? 

The law is clear on who can request to work from home. It is also clear on the process that must be followed. Whether or not requests have to be accommodated is when it wanders into a grey area.

Employers are entitled to refuse requests on reasonable business grounds. That entitlement gets murkier when we consider COVID-19 and the impact it has on what’s “reasonable”.

Under the Fair Work Act 2009 (FWA), full-time and part-time employees with at least 12 months of continuous service, and casual employees who have the same and a reasonable expectation of ongoing employment, are eligible to make flexible working requests, such as working from home, if they meet any of the following criteria:

  • They are the parent, or have responsibility for the care, of a child who is of school age or younger.
  • They are a carer (within the meaning of the Carer Recognition Act 2010).
  • They have a disability.
  • They are over 55 years of age. 
  • They are experiencing violence from a member of their family. 
  • They provide care or support to a member of their immediate family or household who requires care or support because they are experiencing violence from their family.

Catering for new expectations?

As organisations become more familiar with managing working-from-home arrangements due to COVID-19, and some staff find that they both prefer it and are more productive while working at home, it’s likely many employers will be expected to mainstream flexibility. 

The cultural demand for flexibility could move far beyond the eligibility requirements. Offering flexible work is already considered best practice to build more diverse, inclusive and engaged workforces.

The legislation will still be in force and employers should remember they can only deny requests from eligible employees after following a process prescribed by the legislation and applicable awards.

While the FWA doesn’t provide a mechanism to scrutinise whether business grounds were “reasonable”, if an employee considers they have been discriminated against on grounds such as family responsibility, gender or disability, they may make a complaint to a state or federal discrimination tribunal. Discrimination tribunals will consider an organisation’s resources, disruption to the business or other employees, and the effect on an employee’s ability to work efficiently. 

Arrangements that were once considered unfeasible may not be considered so in a post-pandemic world. 

It will be less reasonable to argue that flexible arrangements are impractical and too costly after an employer has already invested in their flexible work infrastructure, worked with employees to maximise business continuity, leveraged technology and accommodated changes in hours for employees home-schooling children. The onus is on employers to explain why these arrangements would suddenly be unjustifiable post-pandemic. 

What is an unjustifiable hardship is relative to the size of the workforce and resources available to the employer. What may pose an unjustifiable hardship for a small business may be an entirely reasonable change for an ASX-listed business.

With the aid of highly capable technologies, interaction with staff and effectively performing duties from home is undoubtedly achievable. While the inherent requirements of a role must be assessed case by case, the circumstances in which an employer can deny a request on reasonable business grounds will likely shrink post-COVID-19. 

As a silver lining, many employers seem to be marvelling at the productivity and costs benefits of more staff working from home.

In a world where remote working has quickly been normalised, employers should keep all this in mind when assessing an employee’s request. Any refusal to accommodate such requests for eligible employees must be carefully considered and may be open to increased scrutiny. 

This article first appeared in the June 2020 edition of HRM magazine.


Have an HR question? Access our online AHRI:ASSIST resource for HR guidelines, checklists and policy templates on different HR topics, or ask your question online. Exclusive to AHRI members.


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Ciaran Strachan
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Ciaran Strachan

Fay I’m not sure why or where this message is coming from that when a request is made, whether it can be accommodated or not is a “grey area.” To me it is pretty clear, The intent of the December 2018 changes to the FWA’s flexible working arrangements was that unless the employer had a justifiable reason, the request should be approved. Hence why adjustments were made that include: ………….an employer must respond with a yes or no………………and the response must be made within 21 days to the request being made. There is no option for an employer to choose… Read more »

Fay Calderone
Guest
Fay Calderone

Thanks for your considered response to our article Ciaran. When you refer to the ‘December 2018 changes to the FWA’s flexible working arrangements,’ I assume you are referring to the Model Term that was inserted into all Modern Awards (Clause 6 – ‘Requests for flexible working arrangements’) which don’t apply to award free employees. The Model Term was intended to supplement s 65 of the Fair Work Act 2009 (Cth) (FW Act) and placed more onerous obligations on employers including (amongst others) to genuinely consult and respond to requests for flexible work arrangements and provide detailed written reasons of any… Read more »

More on HRM

Remote working requests and COVID-19: a legal refresher


Employee requests to work from home are likely to increase post-COVID-19. Legally, do you have to consider this? 

The law is clear on who can request to work from home. It is also clear on the process that must be followed. Whether or not requests have to be accommodated is when it wanders into a grey area.

Employers are entitled to refuse requests on reasonable business grounds. That entitlement gets murkier when we consider COVID-19 and the impact it has on what’s “reasonable”.

Under the Fair Work Act 2009 (FWA), full-time and part-time employees with at least 12 months of continuous service, and casual employees who have the same and a reasonable expectation of ongoing employment, are eligible to make flexible working requests, such as working from home, if they meet any of the following criteria:

  • They are the parent, or have responsibility for the care, of a child who is of school age or younger.
  • They are a carer (within the meaning of the Carer Recognition Act 2010).
  • They have a disability.
  • They are over 55 years of age. 
  • They are experiencing violence from a member of their family. 
  • They provide care or support to a member of their immediate family or household who requires care or support because they are experiencing violence from their family.

Catering for new expectations?

As organisations become more familiar with managing working-from-home arrangements due to COVID-19, and some staff find that they both prefer it and are more productive while working at home, it’s likely many employers will be expected to mainstream flexibility. 

The cultural demand for flexibility could move far beyond the eligibility requirements. Offering flexible work is already considered best practice to build more diverse, inclusive and engaged workforces.

The legislation will still be in force and employers should remember they can only deny requests from eligible employees after following a process prescribed by the legislation and applicable awards.

While the FWA doesn’t provide a mechanism to scrutinise whether business grounds were “reasonable”, if an employee considers they have been discriminated against on grounds such as family responsibility, gender or disability, they may make a complaint to a state or federal discrimination tribunal. Discrimination tribunals will consider an organisation’s resources, disruption to the business or other employees, and the effect on an employee’s ability to work efficiently. 

Arrangements that were once considered unfeasible may not be considered so in a post-pandemic world. 

It will be less reasonable to argue that flexible arrangements are impractical and too costly after an employer has already invested in their flexible work infrastructure, worked with employees to maximise business continuity, leveraged technology and accommodated changes in hours for employees home-schooling children. The onus is on employers to explain why these arrangements would suddenly be unjustifiable post-pandemic. 

What is an unjustifiable hardship is relative to the size of the workforce and resources available to the employer. What may pose an unjustifiable hardship for a small business may be an entirely reasonable change for an ASX-listed business.

With the aid of highly capable technologies, interaction with staff and effectively performing duties from home is undoubtedly achievable. While the inherent requirements of a role must be assessed case by case, the circumstances in which an employer can deny a request on reasonable business grounds will likely shrink post-COVID-19. 

As a silver lining, many employers seem to be marvelling at the productivity and costs benefits of more staff working from home.

In a world where remote working has quickly been normalised, employers should keep all this in mind when assessing an employee’s request. Any refusal to accommodate such requests for eligible employees must be carefully considered and may be open to increased scrutiny. 

This article first appeared in the June 2020 edition of HRM magazine.


Have an HR question? Access our online AHRI:ASSIST resource for HR guidelines, checklists and policy templates on different HR topics, or ask your question online. Exclusive to AHRI members.


2
Leave a reply

avatar
100000
  Subscribe to receive comments  
Notify me of
Ciaran Strachan
Guest
Ciaran Strachan

Fay I’m not sure why or where this message is coming from that when a request is made, whether it can be accommodated or not is a “grey area.” To me it is pretty clear, The intent of the December 2018 changes to the FWA’s flexible working arrangements was that unless the employer had a justifiable reason, the request should be approved. Hence why adjustments were made that include: ………….an employer must respond with a yes or no………………and the response must be made within 21 days to the request being made. There is no option for an employer to choose… Read more »

Fay Calderone
Guest
Fay Calderone

Thanks for your considered response to our article Ciaran. When you refer to the ‘December 2018 changes to the FWA’s flexible working arrangements,’ I assume you are referring to the Model Term that was inserted into all Modern Awards (Clause 6 – ‘Requests for flexible working arrangements’) which don’t apply to award free employees. The Model Term was intended to supplement s 65 of the Fair Work Act 2009 (Cth) (FW Act) and placed more onerous obligations on employers including (amongst others) to genuinely consult and respond to requests for flexible work arrangements and provide detailed written reasons of any… Read more »

More on HRM