Three legal experts share how HR can navigate employee rights and legal compliance when it comes to return-to-work mandates.

Despite recent research from AHRI showing that full-time, five-day per week return-to-work (RTO) mandates are becoming less common, there is still a significant portion of Australian employers who are enforcing some kind of hybrid RTO arrangement, citing collaboration and workplace culture as key drivers.

However, the legal obligations of employers have evolved significantly – or become more exacting – since the COVID-19 pandemic. As a result, organisations must approach RTO mandates with a nuanced understanding of their legal obligations and the evolving expectations of employees.

The re-emergence of RTO mandates reflects a strategic shift aimed at restoring face-to-face collaboration and reinforcing organisational cohesion. According to AHRI’s research, 44 per cent of employers have a minimum requirement for full-time employees to attend the physical workplace between three and five days a week, down from 48 per cent of employers in 2023, with three days being the most common arrangement.

However, this recalibration is occurring within a fundamentally altered legal and cultural landscape. Flexible work is no longer seen as a discretionary privilege but as an embedded feature of modern employment.

Employers must balance commercial imperatives against heightened statutory scrutiny, evolving employee expectations and legal obligations arising under contracts, enterprise agreements, modern awards and statute. 

Rigid or generalised mandates that disregard individual circumstances are unlikely to withstand legal scrutiny. Here’s what HR practitioners need to keep in mind from a legal perspective.

Lawful and reasonable directions: understanding the legal test

Under the common law, employers may issue directions to employees that are both lawful and reasonable. This test is conjunctive and context-specific.

A direction is:

• Lawful if it does not contravene any law, including the terms of a contract, industrial instrument or statutory provision.
• Reasonable if it is proportionate, factually grounded and appropriate given the employee’s duties.

In the return-to-office context, directions are more likely to be considered reasonable where:

• The role necessitates in-person attendance (for example, because there are unexpected, last minute or urgent in-person meetings or duties, or where in-person collaboration or supervision of staff is needed).
• Documented performance concerns exist.
• Remote work demonstrably compromises operational efficiency (for example, if time or quality is lost on a task or project because it is difficult to collaborate remotely or on different devices/networks).
  

Conversely, RTO mandates may be unreasonable where:

• The employee has consistently met performance expectations while working remotely.
• The role is not inherently site-based (e.g. interactions with clients, stakeholders and/or customers can reasonably be completed in a virtual setting).
• The mandate is applied uniformly without considering individual circumstances.

Employers must also be mindful that directions which contravene the Fair Work Act 2009 (Cth) or the Disability Discrimination Act 1992 (Cth) – for example, by failing to accommodate flexible work requests or refusing reasonable adjustments – may not be lawful or reasonable.

Key obligations under the Fair Work Act and the Disability Discrimination Act, while critical, are not exhaustive. Employers must also consider state and territory anti-discrimination laws, industrial instruments and work health and safety legislation where relevant.

Read HRM’s article ‘4 legal considerations when responding to a flexible work request’.

Flexible work requests under the Fair Work Act 2009 (Cth)

From 6 June 2023, amendments to the Fair Work Act introduced more robust obligations in relation to flexible working requests. Under section 65, certain employees are entitled to request flexible working arrangements, including remote work, if they:

• Have at least 12 months of continuous service (or are long-term regular casuals with a reasonable expectation of continuing work).
• Are parents/carers, persons with disabilities, aged 55 or older, experiencing family violence, or caring for someone who is.

Employers must:

• Respond in writing within 21 days.
• Genuinely consult before refusing a request.
• Only refuse on reasonable business grounds, such as significant cost, impracticality or impact on productivity or service.

Critically, refusals must be specific to the employee’s role and circumstances. Generalised or blanket refusals are unlikely to satisfy the statutory threshold.

Recent case law underscores the importance of a documented, consultative and evidence-based process. In this particular case, the Fair Work Commission found that the employer’s refusal of an employee’s flexible work request was deficient due to a failure to meaningfully consult and provide role-specific evidence. As a result, a hybrid working arrangement was imposed.

“Flexible work is no longer seen as a discretionary privilege but as an embedded feature of modern employment.”

A developing trend: proposed work-from-home clause in the Clerks Award

The FWC is currently considering a proposed work-from-home clause for the Clerks – Private Sector Award 2020. If adopted, this would introduce structured consultation and approval processes for remote work for award-covered clerical employees, even if they are not otherwise eligible under section 65 of the Fair Work Act.

This development reflects a broader trend towards codifying flexible work entitlements and reducing employer discretion over remote work arrangements.

Anti-discrimination risk: reasonable adjustments under the Disability Discrimination Act

Employers must also comply with obligations under the Disability Discrimination Act 1992 (Cth) (and equivalent state and territory anti-discrimination legislation), particularly where rigid RTO mandates may adversely impact employees with disabilities.

The Act prohibits both direct and indirect discrimination and requires employers to provide reasonable adjustments unless this would cause unjustifiable hardship.

Reasonable adjustments in the RTO context may include:

• Continuing remote or hybrid work arrangements.
• Adjusting required hours or attendance expectations.
• Implementing technological or environmental changes to support performance.
  

Importantly, an obligation to accommodate arises once an employer knows, or ought reasonably to know, of an employee’s disability. Formal disclosure or medical certification is not strictly required.

Key action points for HR and in-house counsel

Employers considering return-to-work mandates should:

• Audit RTO mandates and policies for compliance with employment contracts, industrial instruments and statutory rights. It’s also advisable to avoid blanket policies.
• Apply the lawful and reasonable direction test to assess whether mandates are legally valid and appropriate for each role.
• Comply with section 65 of the Fair Work Act by responding to requests within the required timeframe, consulting meaningfully, and providing evidence-based reasons for any refusal.
• Monitor developments in award regulation, including potential changes to the Clerks Award and other modern awards.
• Implement reasonable adjustments for employees with disabilities where required.
• Maintain detailed records of consultations, decisions and rationales to support future defence.
• Educate HR and management on evolving legal requirements and the practicalities of managing flexible work lawfully and fairly.

This article provides a summary only and is not intended as legal advice. 

Amy Zhang is an Executive Counsel and Team Leader, Hannah Nesbitt is a Senior Associate and Nina Qiu is a Solicitor at Harmers Workplace Lawyers.

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