WFH warning after Aussie dad's request denied in new ruling: ‘Troubling'

Yahoo

4 days ago

A Sydney dad has had his request to work from home two days a week rejected by the Fair Work Commission. The case could have legal implications for other Aussies returning to the office full-time, with a legal expert noting workers would be required to show they have a 'good enough reason' to request to work from home.
Fair Work deputy president Lyndall Dean found a 'preference' to continue working from home wasn't enough. She said the worker hadn't established a sufficient 'nexus' between the request and his responsibilities as a parent to care for his two school-age kids, aged 8 and 10, and this resulted in her ruling in favour of the employer.
Monash University business law lecturer Amanda Selvarajah told Yahoo Finance the decision was an example of Fair Work putting the onus on employees to 'justify' their flexible work requests, with less focus placed on employers in comparison.
RELATED
Tradie 'forced' to quit job after boss swears at him in secretly recorded meeting
Coles and Costco grocery price comparison 'shocks' Aussie mum
Aussie tradie loses $110,000 house deposit due to small detail
'It sets a troubling precedent when employers don't have to justify their preferences around flexibility, but employees have to justify theirs. I think that tips the scales in a troubling way,' she said.
Australian workers have the right to request flexible working arrangements if they are eligible full-time, part-time or long-term casuals and meet certain eligibility criteria.
That includes workers who are parents or carers of kids of school age or younger, along with workers who are pregnant, carers, have a disability, are 55 or older, or are experiencing family and domestic violence.
Employers can also refuse the request on "reasonable business grounds" and have to take certain steps, like discussing the request with the employee.What happened in the worker's case?
The Sydney man worked for global software company Intersystems, as a technical specialist.
The company had adopted a hybrid working model after the pandemic, with employees able to work from home two days per week.
However, in November, the company let staff know they would be required to come into the office full-time, five days a week, from February.
The man had requested to continue working from home two days per week, citing caring responsibilities for his two school-aged kids, which he shared with his wife, and the need for work-life balance.
This was denied by his employer, who instead offered for him to work from home one day a week. This was rejected, with the worker then taking the matter to Fair Work.
The company argued working from the office allowed employees to exchange information, supported mentoring opportunities, and allowed for faster decision making and more efficient resolution of customer issues.
Its user survey revealed a 28 per cent decline in customer satisfaction, which prompted management to implement the measures.
What did Fair Work decide?
Dean found in favour of the employer.
She said the evidence did not demonstrate that the employee was required to work from home two days per week in order to meet parental responsibilities.
'[He] conceded in cross-examination that he has no specific caring duties between the core working hours of 9am and 5pm, and that he and his wife are able to manage school drop-offs and pick-ups through existing flexibility, including adjusted start and finish times,' she said.
She added the employer made 'genuine' attempts to engage with the work from home request, including offering alternative arrangements like working shorter hours on specific days, with the employee giving 'no explanation' why the alternatives were unsuitable.
What does this mean for other workers?
More workers have been putting flexible work refusals to the test since the government introduced powers under the Secure Jobs Better Pay law.
Selvarajah said the case was part of a 'pattern of decisions from the Fair Work Commission' and meant employees had to show a "good enough reason" to support their request.
'It does mean that employees making requests are probably not only going to have to specify the criteria they're relying on, but provide quite detailed reasons as to why the particular flexible work arrangement they're asking for is going to be related to the particular eligibility criteria and actually explain this 'nexus',' she told Yahoo Finance.
Selvarajah said some employees may be reluctant to ask for flexible work arrangements if the bar is too high.
'To be engaging with that type of conversation with your employer about the specifics of why you might need to take time off, for example, if you were a family and domestic violence victim, that's quite a huge invasion of privacy,' she said.
'It's quite a lot to ask of employees, and at a time when I think we should be normalising flexible work requests, it actually places a lot of formality and rigmarole around asking for a flexible work request in the first place.'
Selvarajah noted the case wasn't a binding precedent and the Commission could change their mind on the interpretation of the legislation and had scope to read it differently.
It comes as major companies ask staff to return to the office full-time, including the likes of Amazon, Tabcorp and Flight Centre. Other companies like Woolworths have increased the number of days workers are required in the office.