The aftermath of COVID-19 – Can I ask my employees to come back to the office now?

Insights13 Mar 2024

By Nhu-Thuy Dinh, Alison Baker, Fay Calderone, David Catanese, Aaron Dearden, Kristopher Kunasingam, Rosemary Roach and Karl Rozenbergs

By Mark Dunphy, Nhu-Thuy Dinh and Jacinta White

Key takeaways

The Fair Work Commission is considering changes to modern awards which may include working from home arrangements.
It is a lawful and reasonable direction to request an employee to return to the office.
Employees are required to follow working from home policies and procedures.
Employers should consider the potential consequences of the new ‘right to disconnect’.

Modern Award Review

The law is recognising that societal views and attitudes are changing with regards to the way people perform work.

On 29 January 2024, Deputy President O’Neill published a statement regarding the Modern Awards Review for 2023-24. As part of the review, the Fair Work Commission will conduct surveys seeking feedback regarding working from home arrangements.

This follows the Senate work and care inquiry which made recommendations regarding the right to disconnect from the workplace and supporting working from home arrangements.

Direction to return to the office

As the law currently stands, employers are entitled to direct employees to return to the office if the request is lawful and reasonable. This position is affirmed in the decision of Chantelle Major v Strata Management Group Pty Ltd [2023] FWC 2276. Commissioner Simpson found that the applicant failed to follow a lawful and reasonable direction concerning working from one of Strata Management Group’s offices.

Commissioner Simpson observed at [82]:

‘…the Applicant was not entitled to the same flexibility arrangements which she appeared to have enjoyed prior to her commencing the process of training into the role of business development, and it is clear the direction and expectation of the Respondent was that the Applicant be working from the Sunshine Coast office, the Brisbane office, or she could be with a client out of the office if this was recorded and preferably discussed with her work team. It is clear this did not occur, and in all likelihood the Applicant was continuing to work as if she was entitled to a flexible working arrangement which she was not.’

On this basis, it is clear that where a lawful and reasonable direction is given to an employee to work from the office, or a work-related location, and employees refuse to comply with this direction, an employer may choose to take disciplinary action against the employee for non-compliance.

Complying with working from home policies and procedures

In addition to a direction being lawful and reasonable, employers must also ensure that the direction is consistent with the terms of the employee’s employment contract and the employer’s workplace policies and procedures.

On 3 January 2024, Commissioner Connolly handed down the decision of Diandong Ren v The Commonwealth of Australia as represented by the Bureau of Meteorology T/A Bureau of Meteorology [2023] FWC 3157, which concerned the dismissal of an employee who was covertly working remotely overseas. In summary:

During the COVID-19 pandemic and for a period following, employees of the Bureau of Meteorology were entitled to work remotely, including overseas.
The applicant contended (which the Bureau of Meteorology accepted) that the Bureau of Meteorology installed the necessary technology to his mobile phone and computer to allow him to work remotely, including overseas.
Further, the applicant contended that the Bureau of Meteorology was aware that he was working remotely and did not object.
The Bureau of Meteorology submitted that its employees hold a unique position in their employment and are required to uphold appropriate standards of conduct. By acting without honesty and without integrity, including a distinct lack of regard for relevant policies and procedures, this resulted in a breakdown of trust and confidence that was necessary for the applicant’s employment relationship to continue.
The relevant policies and procedures included seeking permission and authorisation for leave and remote access to the Bureau of Meteorology’s IT systems to allow him to work remotely within Australia or overseas.

Commissioner Connolly held that while the Bureau of Meteorology may have previously accepted employees working overseas, it was a requirement of the Bureau of Meteorology’s Protective Security Policy Framework for employees to work in Australia. The Commissioner also found that the applicant had accessed the Bureau of Meteorology’s IT networks, without prior approval, failed to present in Australia to undertake duties and made false statements by claiming he had returned to Australia (when he had not).

On this basis, there was a valid reason to terminate the applicant’s employment, and his dismissal was not ‘harsh, unjust or unreasonable’ for the purposes of his unfair dismissal claim.

Flexible working arrangements

Employers must be aware that while it can direct employees to return to the office, some employees may be entitled to request flexible working arrangements.

Subject to reasonable business grounds, an employer may be required to offer flexible working arrangements, if a permanent employee has been employed for at least 12 months and the employee is:

a parent, or has responsibility for the care, of a child who is school aged or younger;
a carer (under the Carer Recognition Act 2010);
a person with disability;
55 or older;
pregnant;
experiencing family and domestic violence; or
providing care or support to an immediate family or household member who is experiencing family and domestic violence.

New ‘right to disconnect’

Employers need to consider the potential consequences of the new ‘right to disconnect’, where employees may ‘refuse to monitor, read or respond to contact, or attempted contact‘ from their employer (or related parties) outside of their work hours, unless it’s unreasonable to do so.

This is particularly relevant for employees who are working from home and feel the pressure of regularly being available and/or responsive for work purposes.

If you want to know more about the ‘right to disconnect’ and what this means for you, please see our related article, The right to disconnect: everything employers need to know.

Where to next?

The law is changing regarding appropriate working arrangements, and who knows if the future will mean the bulk of the Australian workforce are working from home or, more likely, working a hybrid arrangement.

However, until the finalisation of the Modern Award Review and subject to the outcome, the law is clear. Employers are entitled to direct employees to return to the office on the basis that it is a lawful and reasonable direction and where such directions are consistent with employment contracts and policies and procedures.

Hall & Wilcox can assist you if you require advice about complying with flexible working arrangements, preparing remote working policies and procedures and managing employees who fail to comply with any lawful and reasonable directions to perform work from the office and/or work-related locations (where appropriate).