Fair Work Commission confirms employers can require employees to attend workplace

In November 2023, the Fair Work Commission (FWC) published a determination under its increased powers in relation to flexible work arrangements. The FWC emphasised the importance of face-to-face contact in the workplace and the right of employers to require employees to attend the workplace to perform their role.

In Gregory v. Maxxia Pty Ltd [2023] FWC 2768, the employee requested to work entirely from home because:

• He had a school aged child who he cared for every second week
• He suffered from inflammatory bowel disease requiring urgent and frequent trips to the bathroom.

The employer did not agree to the employee’s request to work entirely from home. The employer proposed an arrangement whereby the employee would work 20 per cent in the office for approximately one month and 40 per cent in the office thereafter. The employee would have the flexibility to choose which days he attended the office.

The employee rejected the proposal.

Reasonable grounds to reject flexible work arrangement

After genuinely seeking to reach an agreement to accommodate the employee’s circumstances, the employer rejected the application for a flexible working arrangement on reasonable business grounds pursuant to s. 65A(3)(d) of the Fair Work Act 2009.

The following factors were relevant to the employer’s decision:

• The employer is the sole provider of salary packaging services for the South Australian Government. Its contracts require it to answer 99 per cent of calls within three minutes and emails within two business days. The employer would incur significant financial penalties if its contractual obligations were not met.
• The employee was failing to meet daily productivity targets.
• It was beneficial to observe and support the employee in the office.
• The employer wanted to remain fair and consistent across the business with flexible working arrangements.
• The employee was “struggling mentally” and proper support could not be provided remotely.
• It was desirable for the employee to work in the office with other employees to contribute to team culture, training and discussions.

The employee made an application to the FWC to deal with a dispute under s. 65B of the Fair Work Act 2009. The FWC dismissed the employee’s application stating that the employer’s decision to refuse the employee’s application for a flexible working arrangement was made on reasonable business grounds.

The FWC found that it was reasonable for the employer to refuse to allow the employee to work 100 per cent from home and to require him to attend the office 40 per cent of the time.

Importantly, the FWC noted the desirability of “face-to-face contact within workforce team” and that “face-to-face presence would allow for observation, interaction and (if necessary) coaching to improve Mr. Gregory’s productivity and provide him with greater support.”

Heather Richardson is head of the employment law practice at Kalus Kenny Intelex Lawyers in Melbourne. Jessica Seferis is an associate specialising in commercial litigation at Kalus Kenny Lawyers in Melbourne.