Working from home – challenges for employers

With the new Fair Work changes to Flexible Work Arrangements that came into effect on 6 June 2023, there is no better time to understand your obligations as an employer under the National Employment Standards (NES). This article will explore one aspect of how flexible work arrangements and working from home inter-relate. While this article should not be considered professional advice as all situations should be carefully considered on their own merits, it will cover some key concepts.

This updated legislation now expands the scope for requesting Flexible Work Arrangements to include pregnant employees and circumstances where an employee may need to care for an immediate family member or household member who is experiencing domestic violence.

This expands on the current arrangements that can include:

  • the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;
  • the employee is a carer;
  • the employee has a disability;
  • the employee is 55 or older;
  • the employee is experiencing violence from a member of the employee’s family;
  • the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family

This change has not only made Flexible Work Arrangements more accessible to employees it has also clarified the process that employers must follow when requests for flexible work arrangements are made. Hence there is a greater need for employers to understand the requirements and their obligations under the NES.

Flexible Work Arrangements

Flexible Work Arrangements refer to alternative methods of work that give an employee greater flexibility and control over when, where, and how they work. Examples include reduced hours, changing start/finish times, working from home, moving from full-time to part-time work, or job sharing.

Fair Work has broadened the scope of eligibility for requesting Flexible Work Arrangements making it overall more accessible to the workforce. Regardless of this, it may be in the best interest of the employer to go beyond their legal obligations and consider all applications for flexible work, regardless of whether the employee meets the eligibility requirements.

Why? Because it can lead to increased productivity, better attraction and retention of employees, lower overhead costs, and a stronger commitment from employees.

Working for home

Working from home is considered just one of the many flexible work arrangements available. It means that the employee works remotely from their home, and it can provide certain benefits to employees, for instance, improved work-life balance, reduced cost and time commuting, greater independence, and autonomy in managing workload.

Working from home is highly valued by many employees, but there are some considerations for employers. One challenge commonly raised by our clients is when an employee requests to work from home because they are unable to find care for their child which would mean they are simultaneously working and caring for a child. Generally, this situation should be managed by the employee taking annual leave or leave without pay if they do not have any annual leave available. However, some employers may consider a work-from-home arrangement as appropriate when the child is able to be self-sufficient or there are other circumstances that would warrant it. Employers may wish to consider though other flexible work options, especially in situations where they are concerned with the employee being able to productively work from home or children impacting the ability for the employee to conduct themselves as usual (e.g., being able to take a phone call uninterrupted). In this circumstance, other alternative methods of flexible work, for instance, reducing the employee hours or changing their start and finish times to accommodate their needs may be a better compromise. The employer generally has no obligation to allow employees to work from home where they are also going to be the primary carer of the child. However, employers should also have clear policies in place about when working from home is and is not appropriate and be mindful of ensuring all employees are treated fairly and consistently in this regard.

In summary, employers have an obligation to genuinely consider and respond to employees’ requests for Flexible Work Arrangements where they meet the criteria under the legislation. However, working from home is not always the only and most appropriate option.

What you can do to manage requests for flexible work arrangements

It is important for employers to have a Flexible Work Policy and where working from home might be an option, a Working from Home Policy and Agreement too. Policies ensure that employers can manage requests for Flexible Work Arrangements in a manner that is consistent and compliant with obligations. By taking a proactive approach to managing flexible work and working from home, employers can maximise the benefits of Flexible Work Arrangements while minimising the potential drawbacks.

To find out more about the recent Fair Work change to the Flexible Work provision under the NES, or to seek assistance in managing Flexible Work Requests or to implement policies and procedures around this, contact Industryus HR today. 07 5655 4047.

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