Can companies legally force employees back to the office full-time?

New rules as of June 6 could see employer refusals for flexibility appealed to FWC

Can companies legally force employees back to the office full-time?

Just one in 10 workers are heading into the city five days a week, according to a Victorian Chamber of Commerce and Industry survey.

Alarmingly for employers, that figure dropped from one in five over the course of March and April this year.

However, the number of employees working from the office three to four days per week has increased from 41 per cent in November 2022 to 46 per cent in March 2023.

And from June 6 onwards, employees can legally challenge an employer’s refusal to grant flexible work arrangements.

So, can employees be forced to return to the office? Yes, according to one legal expert.

“Unless the employee has made a request for flexible working conditions that has been accepted by their employer, the employer can enforce the contract by mandating a return to office. This only applies if the contract stipulates the location of the work,” Nick Maley, partner, Holman Webb Lawyers, said.

Employees can apply to an employer for flexible work arrangements, and an employer can refuse the application if it has reasonable business grounds to do so, je said.

“From 6 June 2023, the employer’s decision to refuse flexible work requests can be appealed to the Fair Work Commission. At present, that right of appeal is only available where an Award or Enterprise Agreement allows it.”

FWC denies flexibility request

In one notable case, Fyfe v Ambulance Victoria, decided on 6 January 2023, a paramedic requested flexible work, which was denied. The employee appealed to the FWC under an award arrangement. The FWC found that Ambulance Victoria had reasonable business grounds to deny the request. The appeal was refused.

“More challenges like this are likely to occur after the change to allow all employees to appeal to FWC after 6 June 2023,” Robin Young, partner, Holman Webb Lawyers, said.

Before considering what location it should include in its contract, a company should consider its business needs, he said. If a company wishes for all its employees to work at one location, it should stipulate this in its employment contracts; however, some companies may be happy with many of its employees working flexibly and may consider including working from home provisions in their contract.

“But employers should be cautious in doing so, as the employment relationship is bound by the contract. A provision like this may prevent an employer from mandating work in one location in future,” Young said.

This generation of workers refusing to return to the office is "selfish," according to the CEO of Sydney-based CR Commercial Property Group.

Positive work culture encourages returns

The Victorian Chamber of Commerce and Industry survey revealed that two-thirds of businesses have indicated they are using social incentives such as team lunches, after-work drinks or in-person meetings to encourage people back to the office.

Further, 55% of businesses have maintained a minimum required number of days employees must work from the office, with the majority of these respondents requested employees to return a minimum of three days per week (52%), followed by two days per week (24%).

“Despite the huge leaps forward in flexibility, working from home, and levels of employee/leader trust developed during the pandemic, we are definitely seeing more organisations 'forcing' employees back into the office,” Georgia Henry, CEO of Henry Reed, said.

Why? They can't create a positive workplace culture when employees aren't here, they have less control over the work being done, they say it doesn't work for their business and employees are not as productive, he said.

“To me, all of these are leadership issues and not employee issues. When leaders can effectively 'lead culture,' they create an environment of trust, productivity, and improve the value proposition for employees and the organisation.

Forcing employees back into the office is not necessarily better for anyone, Henry said.

“In our company, we have a flexible work policy and employees are trusted to get work done. The focus is on understanding individual needs, setting clear expectations for what is required, regular communication, and demonstration of care for each individual's needs.

“If an employee is not able to come into the office, our approach is to understand why and what can be done to ensure they are able to contribute as needed and have the support they required. It is a much better approach than losing a quality employee to a competitor.”

The Victorian Chamber of Commerce and Industry survey also revealed that 10% of workers had not returned to the office at all since all COVID restrictions were lifted.

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