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Norman Waterhouse

Working from Home: Not an inherent workplace entitlement

The National Employment Standards contained in the Fair Work Act 2009 (Cth) (the Act) contain a right for employees to request flexible working arrangements in particular circumstances, for example, if an employee is pregnant, or has the responsibility for the care of a child, or where the employee is a carer.

Flexible work can take on many forms such as part-time work, job sharing, hybrid, time off in lieu, or 4-day work weeks, or as stipulated by relevant enterprise agreements and modern awards. The last few years accelerated the concept of hybrid work, where employees and employers alike were required to pivot to accommodate working from home arrangements.

As case law in relation to the management of hybrid work continues to emerge, the recent case of Homes v Australian Carers Pty Ltd (No 2) [2023][1] heard in the Federal Circuit and Family Court (the Court) confirms that there is no general workplace right to working from home.

Facts

The Applicant, Charmaine Homes alleged that she was discriminated against, bullied or harassed by her employer, Australian Carers Pty Ltd and Reginald Malcom Vitrell (the Respondents) who refused her request to work from home on a trial basis.

Ms Homes alleged that she was treated differently from her supervisor, who was permitted to work remotely and subsequently filed a general protections complaint. Ms Homes asserted that she was not afforded her workplace right of not being bullied, harassed or discriminated against throughout her employment.

Decision

The starting point is determining when a person has workplace rights. As per the Act, a person has a workplace right if they are:

  • entitled to the benefit of, or have a role or responsibility under workplace legislation or related instruments;
  • capable of initiating or participating in a process or proceedings under a workplace law or instrument; or
  • able to make a complaint or inquiry to another person seeking compliance with any industrial law or workplace instrument, or in relation to their employment.

The Court found that the Respondents’ refusal to allow Ms Homes to work from home was ‘consistent with the fact that there was no such right’ either at a legislative or contractual level. The Court then went on to state that the existing precedents at common law ‘do not support a general right or entitlement in an employee to provide their services from home at their election’.

Ms Homes further alleged that her supervisor working from home was a form of discrimination against, bullying or harassment following the refusal of her own request to work remotely. The Court disagreed, stating that such a right does not automatically extend to her, nor does it confer a right or entitlement on her. Her supervisor held a different position and performed different job functions altogether, with a disparate level of experience compared to Ms Homes.

This differentiation, according to the Court, was sufficient for her employer to exercise its discretion and extend the option of remote work only to her supervisor.

The Court went on to state that the evidence adduced did not establish that any alleged complaint or inquiry with respect to not being able to work from home was made to a person who had the power to step in. As such, the Court treated such a complaint as one that did not give rise to a workplace right for the purposes of the Act. It follows that the evidence indicated that there is nothing to ground the allegation of bullying, harassment or discrimination in relation to refusing Ms Homes to work from home.

Therefore, in these circumstances, it was concluded that the Respondents had no case to answer.

Take Home Messages

While the decision confirms that employees do not have a general right or entitlement to work from home, they still have a right to request for flexible working arrangements, unless of course, remote or hybrid working arrangements are an inherent requirement of the role or enshrined in the terms of a contract or industrial instrument.

The recent amendments to the Act (which we discuss here) [link: https://www.normans.com.au/new...] bolstered the rights of employees when making requests for flexible working arrangements. Even though employers are still able to reject such requests, they must first satisfy their obligation to engage in conversations with their employees before reaching a decision on any proposed flexible working arrangements.

If you require advice about employees requesting flexible working arrangements or implementing and managing relevant policies and procedures, please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au, Anastasia Gravas on +61 8 8217 1331 or agravas@normans.com.au or Li-shern Sim on +61 407 017 681 or lsim@normans.com.au for assistance.


[1] Homes v Australian Carers Pty Ltd (No 2) [2023] FedCFamC2G 714.

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