Fair Work Commission rules on work-from-home challenge for the first time

The Fair Work Commission sided with an employer asking an employee to return to the office 40 per cent of the time.

The Fair Work Commission sided with an employer asking an employee to return to the office 40 per cent of the time. Photo: Getty

The Fair Work Commission’s decision to support a business challenged on its work-from-home policy may be a win for employers, but experts say it also provides clarity for those working remotely.

A workplace tribunal found that Maxxia, a salary packaging provider, had reasonable grounds to reject its employee’s request to work remotely because it helped the employee meet the company’s productivity targets, improve team culture and assist with training.

Dr Libby Sander, a workplace expert at Bond University, said the FWC would have taken into account performance and the employer’s request when making its decision.

“In this case, the employer has a requirement of 40 per cent of the time in the office,” she said.

“This employee was only working at or achieving 50 per cent of their productivity targets, so I think that decision also relates to that.”

The appeal to the Fair Work Commission’s workplace tribunal was made possible because of the newly introduced Secure Jobs Better Pay workplace laws, which allows employees to appeal against an employer’s decision to refuse flexible working arrangements.

Dr Nataliya Ilyushina, an economist and a research fellow at RMIT University, said the Fair Work Commission’s decisions will create guidelines for the future.

“It gives a lot of clarity as to the process and what’s wrong and what’s right, outlining the situation where requests for flexible work or 100 per cent work from home is reasonable and allowed,” she said.

“For example, it clearly states that a worker should be employed for 12 months on a full-time or part-time basis, and after that, they’re entitled to request a flexible work arrangement.”

Pushing back

The concept of ‘over employment,’ or holding multiple remote jobs at the same time, rose to prominence during the pandemic and has spread online as a way for workers to make bank at their employer’s expense.

Ilyushina said there has been much discussion within businesses about workers starting to take advantage of work-from-home arrangements.

“There have been reports of people taking on two jobs for example,” she said.

“The decision still has a lot of room for subjective judgment; what’s reasonable for one person may not seem reasonable to the manager.”

She said the reality is there are many jobs that can be done completely remotely, but that can create disadvantages.

“There is solid research and evidence that you are much more likely to be promoted if you work in the office and that is common sense – you’re more visible to your manager,” she said.

“There is evidence that for workers who worked in the office before COVID and went to work from home, they improved their productivity. But for new hires that were hired straight into remote work, they weren’t as productive.”

Experts say there are advantages to working in the office. Photo: Getty

Setting precedent

Although the decision tested the Secure Jobs Better Pay laws for the first time, Sander said it is important that the context of the situation is taken into account.

“The employer wasn’t being unreasonable. If they wanted the employee back in the office five days a week then perhaps it would have been a different comment,” she said.

“There’s been a lot of doom and gloom either way with this particular topic, but I don’t think we should read too much into it.”

She said there is an important role for office and work-from-home arrangements in the modern workforce.

“Employees are in an employment relationship. There is a contract and these issues aren’t new to working from home.”

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