Employment law changes impacting the future of work

Now that we are some distance from the curfews, 5km travel limits and mask mandates of the COVID-19 pandemic, we can now reflect on the influence the pandemic has had on the way we work and what the future of work may look like. 

In Melbourne, Australia in particular, where we had over 260 days in lockdown, it is unsurprising that the pandemic accelerated the idea of hybrid work. The Victorian Chamber of Commerce and Industry’s latest CBD occupancy survey tells us that 42% of employees are now working from the office three to four days per week. 

However, other legislative and employment law developments are also influencing the future of work. 

Psychosocial hazards and respect at work

The duty of employers to ensure, so far as is reasonably practicable, the health and safety of workers is not new – it has been enshrined in common law and legislative obligations for some time. 

“Health” is defined to include psychological health.¹  Common psychosocial hazards including job demands, remote or isolated work, low job control, workplace conflict and sexual harassment.  

However, a 2018 report by Marie Boland into the work health and safety laws recommended that work health and safety regulations be amended to deal with how to identify psychosocial risks. This was the impetus for amending regulations in various states and territories to deal with psychosocial hazards.

Although the regulations have not yet been implemented in Victoria, it is important to understand that WorkSafe is already focusing on psychosocial hazards, having prosecuted the Victorian government and a charity in August 2022 in relation to occupational violence and aggression. 

We have also seen a focus on respect in the workplace. The Sex Discrimination Act 1984 (Cth) was amended in late 2022 to include a positive duty to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment and sex discrimination in the workplace. These amendments followed recommendations made in the Australian Human Rights Commission’s 2020 Respect@Work report, which found that one in three people experienced sexual harassment at work in the preceding five years and recognised the harm to victims, and costs to the economy, of sexual harassment.

With workplace mental health conditions being one of the costliest forms of workplace injury - the median time lost is 30.7 weeks and the median compensation is AU$55,270²  - this area will continue to be a focus in the future of work. 

Requests for flexible working arrangements

The National Employment Standards contained in Australia’s Fair Work Act 2009 (Cth) have long contained a right for employees to request flexible working arrangements where they have particular circumstances, for example if the employee is the parent, or has the responsibility for the care, of a child who is of school age or younger, where the employee has a disability or where the employee is a carer. 

However, until recently, the provisions were mainly toothless as many employees did not have recourse for dealing with an employer’s refusal of their request. 

The National Employment Standards have now been amended to strengthen these provisions, with effect from 6 June 2023. 

Under these new provisions, if an employer wants to refuse a request on reasonable business grounds, the employer must now (amongst taking other steps):

1. discuss the request with the employee;
2. genuinely try to reach an agreement with the employee about making changes to the employee’s working arrangements to accommodate their circumstances;
3. have regard to the consequences of the refusal for the employee; and
4. set out that the employee can dispute the refusal, including by making an application to the Fair Work Commission.

Most significantly, an employee can now make an application to the Fair Work Commission in relation to a dispute about flexible working arrangements. The Fair Work Commission will be able to hear an unresolved dispute and make various orders including an order that the employer grant the request. 

In the context of more focus on flexible working arrangements post-pandemic, we expect to see case law develop further in this area.  

What is flexible work?

Flexible work can take on many forms – part-time, hybrid, job-sharing, flexible start / finish times, time off in lieu, 4-day work weeks and the list goes on. 

The pandemic accelerated the idea of hybrid work, which typically means working from the office and from another location, usually the employee’s home. 

The Victorian Chamber of Commerce and Industry’s latest CBD occupancy survey tells us that 42% of employees are working from the office three to four days per week, and the number of employees working five days in the office has increased to 19%. 

Hybrid working is clearly still a preference of employees. 

Do employees have a right to work from home?

In 2023 we have seen employers throughout the world taking steps to get their workforce back to the office - in the United States, Google has included attendance at the office in performance reviews and Zoom has directed staff to return to the office 2 days per week.³

This begs the question of whether working from home is a right and how employers can adequately manage employees working remotely. 

Case law is starting to emerge in relation to the management of hybrid work:

• In July 2023, the Fair Work Commission found that an employer had a valid reason for dismissing an employee, with 18 years’ service, who almost permanently worked from home.⁴  The employer obtained keystroke evidence which established that there were extended periods of time where the employee was not working as required. The employee argued that there were times where she was just reading and checking documents, and other times that she worked on her phone, meaning there would not be keystroke data. However, the employee did not adduce any evidence of the work she performed during the relevant period.   
• In August 2023, the Federal Circuit and Family Court of Australia said, in relation to a general protections claim, that “…the cases do not support a general right or entitlement in an employee to provide their services from home at their election…”⁵  The Court also said that merely because the employee’s supervisor was permitted to work from home, it did not follow that the employee was permitted to work from home.
• In September 2023, the Fair Work Commission found that an employer had validly dismissed an employee for working from home without the employer’s permission.⁶  The employee had, without notice, failed to attend the office on several occasions, and at other times left the office during lunchtime to work from home. While the employee had in her previous role in the company been afforded flexible working conditions, her new role required her to attend the office every day. The Commission found that the employer had provided a “clear direction and expectation…that the [employee] be working from the...office” and that the employee was not entitled to flexible working arrangements as a result. Despite a clear direction to attend the office the employee worked from home and did so without notifying her employer in advance.   

Right to disconnect 

On 20 March 2023, Greens leader Adam Bandt MP introduced the Fair Work Amendment (Right to Disconnect) Bill 2023 into Parliament. 

The Bill proposes to amend the National Employment Standards such that:

• an employer could not contact an employee outside of their hours of work, unless there is an emergency or a genuine welfare matter or the employee receives an availability allowance; and
• an employee is not required to monitor, read or respond to emails, telephone calls or any other kind of communication from an employer outside of the employee's hours of work unless the employee is in receipt of an availability allowance. 

We have not heard anything more since the Bill was introduced, and so we will have to wait and see if it progresses. 

Although the intentions are good - managing “availability creep” and allowing workers to properly switch off - there are concerns that it could have the unintended effect of making work less flexible as there would need to be a focus on work being performed within particular hours of work. 

Closing Loopholes Bill

Finally, the Fair Work Legislation Amendments (Closing Loopholes) Bill 2023 was introduced into Parliament on 4 September 2023. 

The Bill contains significant proposed amendments to the Fair Work Act 2009 (Cth) in relation to the definitions of employees and casual employees, the ability of the Fair Work Commission to set minimum standards for “employee-like” workers in the gig economy and the road transport industry, same job same pay for labour hire employees, criminalisation of wage theft and much more. 

The proposed amendments are very significant, and fortunately will not be progressed before February 2024, when the Senate Education and Employment Legislation Committee is required to report back to the Senate. 

Conclusion

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1. Section 4 of the Work Health and Safety Act 2011 (NSW) and section 5 of the Occupational Health and Safety Act 2004 (Vic).
2. Safe Work Australia’s key findings dated 17 January 2023.
3. AFR article dated 8 August 2023 - Even Zoom is making staff return to the office, by Gareth Corfield and Tim Wallace.
4. Suzie Cheikho v Insurance Australia Group Services Limited [2023] FWC 1792.
5. Homes v Australian Carers Pty Ltd (No 2) [2023] FedCFamC2G 714 at 22.
6. Chantelle Major v Strata Management Group [2023] FWC 2276.