Is Work Able to Force You Back to the Office? A Totally Not Self-Interested Investigation

work from home rights australia

The nation’s Cheif Health Officer, Paul Kelly, has urged Aussies to work from home and wear a mask as the latest BA.5 Omicron wave poses a “significant” threat to the country’s health.

Prime Minister Anthony Albanese has, however, tempered this by saying that businesses and employees need to find a “balance” that takes into account the interests of the organisation and that not all jobs can be done effectively from home.

In response, major employers like Telstra and Westpac have updated their office attendance requirements and are now advising staff to complete their tasks at home. Neither organisation now require staff to come into the office and are encouraging those who want to stay home to do so.

This is great news for WFH-enthusiasts, giving legitimacy to the desire to fulfil their roles from the comfort of their living rooms. While the nature of the situation is serious, it also calls into question whether or not an employer has the right to demand in-office attendance.

Outside of the health implications and official regulation, it’s probably fair to say that once you’ve got a taste for the finer things in life, it’s hard to go back. Working from home is one of them. While the media has been dominated with stories of boomer CEOs ripping into ‘lazy’ millennials who can’t even do up a tie anymore, studies have indicated that the transition has been a good thing.

Flexible working arrangements, a necessity during COVID waves, have also allowed those who might otherwise be kept from the workforce to re-enter, not to mention the positive impact that the move has had on our mental health and our finances.

It seems that even without a health crisis, we’re reluctant to give up these perks and return to the normal office 9-5 of the past. The Property Council of Australia’s latest Office Occupancy survey has found that the return to the office has stalled in recent months.

Occupancy levels in capital cities jumped rapidly, as you might expect, between January and March of this year. However, since that time, there hasn’t been quite as sharp of an increase.

Perth saw office occupancy increase between May and June by just 2%. Melbourne increased by just a single percentage point, while the ACT actually went backwards by 7%.

Adelaide has the highest level of office occupancy at 71 % while Sydney appears to have peaked at 66%, occasionally seeing days as low as 38%.

Property Council Chief Executive Ken Morrison has said in a statement that the increasing spread of COVID-19 and the flu were clearly having an impact here.

“The continued spread of COVID-19 and other illnesses, extremely wet weather on the east coast, combined with industrial action in NSW have all clearly hampered workers being able to get into their CBD workplaces,” Morrison said.

“I don’t think these figures are a reflection of workers not wanting to be in the office, but rather a reflection of people being forced to stay home for a range of reasons, whether it be to care for sick kids, rest themselves or to avoid dangerous weather.”

While this might be true, previous data has suggested that at least 90% of the population want flexible working arrangements for at least part of the working week.

Do You Have the Right to Work From Home?

During the pandemic, states and territories enacted mandatory stay-at-home orders for people at various times. Only those who were undertaking essential work that could not be carried out at home were allowed to go to their places of work.

Now, all states and territories have lifted those mandates however there are a few lingering COVID-19 safety clauses still in place. For example, in NSW, if it’s company policy for employees to be fully vaccinated, businesses have the right, in theory, to deny those who aren’t from coming to work. We say ‘in theory’ because this hasn’t yet been tested in court, indicating that few businesses are taking a hardline stance on this. Exceptions here would include aged care workers and frontline medical staff.

Obviously, if you’ve tested positive for COVID, there are still health orders in place for you to isolate for at least seven days. An employer asking you to come into work during isolation would likely be in breach of local health orders.

So, when dealing with COVID, the answer is yes, you have a right and even an obligation to work from home where possible. However, if we’re talking just WFH for the hell of it, that’s a little more complicated.

According to Fair Work, employees have a legal entitlement to request flexible working arrangements under the Fair Work Act. This is however reserved for those who are:

  • Parents or carers of a child who is school age or younger
  • Carers
  • A person with a disability
  • Above the age of 55
  • Experiencing family violence or providing care for someone who is

Even if you are included here, your employer does not have to grant you flexible working arrangements, you just have the right to request it.

Employment lawyer Giri Sivaraman told the ABC that employees are not entitled to simply work from home just because they want to and did so during the pandemic. In addition, you will have signed an employment contract that stipulates your working requirements and failure to do so, by not showing up at the office, would probably put you on disciplinary grounds.

However, most offices and employers recognise the fact that flexible working has been good for them and their employees. There is an ongoing attitude shift towards more lenient and open styles of work, particularly amongst the younger generations. Speaking to your employer would be your first step in attempting to secure flexible working arrangements in the future, however, they are not legally required to entertain these conversations.

Related: What You Can and Can’t Claim This Tax Time If You Work From Home

Related: Are You Dealing With ‘Work Creep’ While Working From Home? Here’s What to Do About It

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