Will WFH become a right for all employees or is it just hype?

Before the COVID-19 pandemic, working from home (WFH) arrangements were considered a perk, primarily available to a select few in managerial or professional roles.

However, the COVID-19 pandemic forced a rapid transition to remote work for millions of Australians in many industries, highlighting its feasibility, benefits and disadvantages.

In 2025, three years on from the relaxation of COVID-19 restrictions, WFH arrangements are still prolific, with 36% of employees (mainly in the managerial, professional and administrative fields) usually working from home¹. A majority of these arrangements are implemented by agreement between the employer and an employee.

However, of recent times, some large organisations including Amazon, Coles and the NSW Public Sector have directed their employees to return to work in the office. The National Australia Bank, Qantas and Westpac have publicly announced that they are keen to get “workers back to work and behind their desks”.

There have also been calls by academics, unions, peak union bodies and political parties to introduce a general right for employees to WFH, either through legislation or by way of modern award changes.

While legislative change is yet to occur, the Fair Work Commission (FWC), is taking steps to remove restrictions in awards on WFH arrangements, starting with the Clerks Private Sector Award 2020 (Clerks Award Proceedings).

What are an employee’s current rights to WFH?

FW Act provisions prior to June 2023

Traditionally, the Fair Work Act 2009 (Cth) (FW Act) only extended that right to request a flexible WFH arrangements to a small cohort of employees, that is, employees who had at least 12 months’ continuous service and who fell into one of the following categories:

• parents or carers of school-aged children or younger;
• carers (as defined by the Carer Recognition Act 2010 (Cth));
• individuals with a disability; and
• employees aged 55 or older.

Prior to June 2023, the employer was entitled to refuse the request on ‘reasonable business grounds’ and was required to set out in writing to the employee the reason for the refusal within 21 days of the request being made. There was no right for an employee to challenge an employer’s decision to refuse a flexible work request. The provisions were therefore largely facilitative and tokenistic.

FW Act provisions after June 2023

In June 2023, the FW Act legislative provisions were amended to give the provisions some “teeth” including:

• giving employees additional grounds to make a flexible work arrangement request to WFH (that is, if they were pregnant or they, or a member of their family who they cared for, were experiencing family and domestic violence);
• placing greater procedural requirements on employers when responding to such a request, including requiring the employer to genuinely tried to reach an agreement with the employee about making changes to the employee’s working arrangements; and
• giving greater powers to the FWC to deal with a dispute (including arbitration) in the event of a refusal to grant the request on reasonable business grounds, by the employer.

In the recent case of Ridings v Fedex Express Australia Pty Ltd t/a Fedex,² the FWC observed that in considering whether a refusal to grant a flexible working arrangement was reasonable, the FWC will require the employer to demonstrate a likely detriment to the business if they wish to refuse a flexible working arrangement that an employee has requested. The FWC observed that “generic and blanket HR answers are not sufficient alone to establish a reasonable business ground for refusing a request”.

Will the FWC entrench a WFH right for award employees in the Clerks Award Proceedings?

The Clerks Award Proceedings are concerned with the development of a WFH term in the Clerks Private Sector Award 2020 (Clerks Award). The FWC has identified that under the Clerks Award, WFH is prevalent with 41.4% of clerical and administrative workers regularly working from home. The term will form a model for incorporation in other modern awards, with or without adaptation.

The FWC is currently seeking the views of the parties on several questions. One of the important questions that the FWC is seeking the views of the parties on is whether a WFH term:

• should include a right for all (or some) employees under the Clerks Award to request WFH arrangements; or
• whether the clause under the Clerks Award should be facilitative in nature only.

While the FWC has not proposed a clause for the parties’ consideration, it is widely anticipated that the clause will use either the pre-June 2023 FW Act provisions or the post June 2023 FW Act provisions as a base.

There are good reasons for employers to be concerned about the prospect of the inclusion of a right to request WFH arrangements in the Clerks Award.

If the right to request WFH arrangements is based on the post-June 2023 FW Act flexible working request provisions and apply to all employees, then the new rights will have the potential to disturb the mandates that have been implemented by many Australian employers for employees to return to work in the office. To successfully defend an employer’s decision to refuse a WFH arrangement, employers will need to have in place robust HR procedures for assessing an employee’s request for a WFH arrangement and be in a position to clearly articulate reasonable business grounds for refusal of such a request.

At this stage it is too early to predict what the FWC will do in the Clerks Award Proceedings. Whether it all hype is yet to be determined. We will update clients on developments in this area as they occur.

Footnotes

1. Australian Bureau of Statistics, August 2024
2. [2024] FWC 1845