“Expected to return to the office”: Fair Work denies employee’s WFH request

The Fair Work Commission (FWC) has handed down a landmark decision that could impact remote work arrangements in Australia.

Last Thursday, Charles Gregory, a man from Adelaide, had his request to work from home permanently denied.

His company, Maxxia, a company that arranges tax-efficient salary packaging services for employees in businesses across the country, imposed guidelines that staff must work 40% of the time in the office.

However, Gregory said his responsibility as a carer, as well as a health condition he suffers from, hindered him from returning to the office on a full-time basis. He is required to care for his child every second week under a custody arrangement, and he also has an inflammatory bowel condition, meaning he needs to use the toilet “with urgency and more frequently than usual”, the FWC said.

Commissioner Christopher Platt at the Fair Work Commission concluded Maxxia’s guidelines were not unreasonable and therefore denied Gregory’s request.

“I accept that it is desirable for there to be face-to-face contact within workforce teams,” the Commissioner said last week.

“Face-to-face presence would allow for observation, interaction and (if necessary) coaching to improve Gregory’s productivity and provide him with greater support.

“Gregory’s knowledge and experience could be more easily accessed by less experienced team members on a face-to-face basis.”

As a result of the decision, Gregory will be expected to return to the office for 40% of his working hours – as per company guidelines – during the days he does not have caring responsibilities.

Striking the balance

The FWC’s decision was the first to be handed down under the Labor Government’s new Secure Jobs Better Pay workplaces laws, which came into effect in June this year.

Among other changes to work arrangements, including bargaining, sexual harassment cases and more, employers are able to enforce return to the office policies.

Brigid Clark, principal lawyer for employment, safety and migration at Macpherson Kelley law firm, told Women’s Agenda that the right for workers to request flexible working arrangements remains in place.

“While working from home is not an absolute right, there are protections and rights for people who have carer responsibilities to request flexible work arrangements under the Fair Work Act,” Clark said.

“(There is) this tension between an employer’s right to direct people to come back to the office and the interests of what’s best for the employee.”

Clark said the role of the Fair Work Commission is “striking the balance” between the two, and each case brought to the Commission must be determined based on their “unique facts”.

“I don’t think this case is going to set a precedent,” she said. “It’s not the downfall for working from home.”

Women working from home with carer responsibilities

One in nine Australians – equating to about 2.65 million Australians – are unpaid carers for children, elderly parents, relatives and more.

According to the Workplace Gender Equality Agency (WGEA), unpaid carer responsibilities tend to fall on women more than men, with 12.3% of all females providing care, compared to 9.3% of all males.

For women with children who want to, or have to, prioritise carer responsibilities more, remote work eases the juggling act.

A survey from HILDA (Household, Income and Labour Dynamics in Australia) found women experienced a 12% increase in job satisfaction while working from home as a result of the COVID-19 pandemic.

Given these numbers, Brigid Clark wants to assure those with caring responsibilities that the right to request flexible working arrangements has not been lost due to this case.

“Women who have carer responsibilities do have a legal right to request formal, flexible work arrangements,” she said.

“Some business leaders have come out and said, in light of this case, that you can’t do everything from home… but I think women and workers in general have proved that in a lot of cases, you can.”

Carers Inclusive Workplace Initiative

Last month, the Albanese government launched the Carers Inclusive Workplace initiative, a framework implemented to improve the flexibility of employers for unpaid carers in the workplace.

Women’s Agenda spoke with the Minister for Social Services Amanda Rishworth in an episode on The Crux, the weekly Women’s Agenda podcast, discussing the benefits for unpaid carers and in particular for women.

The Hon Amanda Rishworth. Member for Kingston. Source: Ben Searcy 2021

“There’s a large portion of the Australian community that has those caring responsibilities, and it does predominantly fall on women,” Minister Rishworth said.

“What we want to do is encourage workplaces and employers to have a look at their policies and procedures about how inclusive they are, as an employer, to accommodate someone’s caring responsibilities as well as work responsibilities.

“A small number of changes, a small number of flexibilities… can actually make a huge difference for that carer, but it also means that that employer gets a really valuable employee.”

This article was first published by Women’s Agenda.