Flexible Working: Do you have to bend over backwards?

Published 22 March 2017

For years it has been predicted that the technology revolution would lead to dramatic changes in the way Australians work, with flexibility the catchword. Evolving work practices include remote working, job-sharing, reduced work hours and variable start and finish times.

Now, it appears, these changes are well and truly upon us. A recent eye-opening study by the Australian Media and Communications Authority (ACMA) says more than half the Australian workforce work, for some of the week at least, away from the office, usually at home.[1]

The Effects
Among some very surprising findings, the ACMA study says that 5.6 million Australian workers (51 percent of the workforce) are ‘digital workers’–people using the internet to work away from the office outside ‘standard working hours’ and ‘teleworkers’ who are allowed to work away from the office, substituting coming into the office for part or all of the day. This includes 49 percent (2.8 million) of employed Australians who work away from the workplace at least two days a week. Technology advances have played a big part in allowing more employees to work remotely.

Legal Considerations
When an employer deals with (a) a request to work under flexible arrangements and (b) with the implementation of such request, two important issues must be considered.

  • The requirement to consider and properly respond to a request
  • Obligation to ensure remote working is done safely.

To be entitled under the Fair Work Act to make a request under this section an employee must fall into one of the categories defined in the section. These include a person who:

  • has a child of school age or younger,
  • is a carer,
  • has a disability,
  • is over 55 years of age, or
  • is experiencing violence from a family member or is providing care or support to an immediate family or household member who is experiencing such violence.

An employer’s written response must indicate whether the request has been accepted or denied. If it is denied reasonable business grounds must be given for the denial such as the proposed arrangement being too expensive, damaging customer service or teamwork, or causing difficulties for other employees. The expenses involved with complying with work health and safety obligations are also relevant.

An employer’s failure to comply with the procedure set out above can incur a penalty of up to $33,000. In Stanley v Service to Youth Council Incorporated [2014] FCA 643, despite an employer having been found to have unintentionally contravened the procedure and showing contrition it was still fined $4,000.

Work Health and Safety legislation does not differentiate between the official workplace and other places where employees are approved to carry out work. If you have an employee who has been approved to work remotely from home you need to consider the health and safety implications of this work area just as you would your office space.

In Hargreaves and Telstra Corp Ltd [2011] AATA 417 an employee of Telstra who twice fell down the stairs in her home was awarded compensation for medical treatment as well as weekly compensation. On the first occasion Ms Hargreaves, who worked from home two days a week, was coughing violently as she went down stairs in her socks to get cough medicine. On the second occasion she fell while descending the stairs to lock her front door, as instructed by Telstra after an earlier burglary at her property. Both of these falls were held to have occurred while Ms Hargreaves was carrying out her work.

If an employer considers allowing and employee to work from home, a work health and safety audit should be conducted to ensure that reasonable steps are taken to avoid risks to health and safety when work is carried out. Some common health and safety risks in the home include trip hazards from wires, back injuries from unsuitable office equipment and safety hazards such as potential fires from excessive clutter on or around office equipment.

Pros and Cons
Flexible arrangements can offer real benefits for employers, but potential drawbacks also should be considered and steps taken to avoid or mitigate them.

The positives for employers include savings in overheads such as rent, office equipment and electricity, resulting from smaller or more shared work spaces. Flexible arrangements can also make a business more attractive to valued employees.

On the other hand, employers can find it more difficult to engage with and reap some positive benefits from employees who work under flexible arrangements. The benefits of shared learning can diminish when more experienced employees are the ones more likely to  take up flexible options and, thus, spend less time face to face with a team. Flexible arrangements can also stymie good team work and result in increased employee grievances, if not managed appropriately. Requiring a fixed number of days working in the office along with effective communications with remote or part-time workers can be of real benefit.

By and large employers are embracing employee flexible working options which technology allows them to use. While these arrangements can have real advantages, businesses need to keep the legal issues firmly in mind and work proactively to overcome some of the drawbacks of employees working apart.

This content is general in nature and provides a summary of the issues covered. It is not intended to be, nor should it be relied upon, as legal or professional advice for specific employment situations.

Olexo Workplace Law recommends that specialist legal advice should be sought about specific legal issues.