Winding Back Working from Home

The answer is, on the whole, yes. However, clubs need to take care that fair and correct procedures are followed.

Lawful and Reasonable

The first consideration is whether the direction to return to work is “lawful and reasonable”. This is an implied term of every employment contract. It would be “lawful” if there was a government health directive or law requiring working from home. Whether it is “reasonable” depends on the factual circumstances, such that if an employee has a chronic health issue under which the employee argues a return to the office is not reasonable. All of these facts need to be considered before making a decision.

Consultation

The second consideration is whether the club needs to “consult”. There are consultation requirements under the Registered & Licenced Clubs Award 2020 (the Award) and usually in most enterprise agreements to consult with employees over major workplace change and changes to rosters or hours of work (if applicable to moving back to the club from home).

The club does not need to obtain consent from employees during consultation, however, consultation must be genuine and consider employee responses, as well as ensuring the club follows the consultation requirements set out in the Award or the relevant enterprise agreement.

Flexible Work Arrangements

The third consideration is the issue of flexible work arrangements. The Fair Work Act 2009 (Cth) contains the right for all employees to request flexible work arrangements after 12 months’ service — and are a parent, carer, have a disability, are at least 55 years old, are pregnant, or are experiencing family or domestic violence (or supporting or caring an immediate family member or household member in that situation).

Requests for flexible working arrangements also exist in the Award, some enterprise agreements and/or employment contracts.

An employer can only refuse a request on “reasonable business grounds” and where they have genuinely tried to agree to alternative arrangements to accommodate the employee’s circumstances, and have considered the consequences for any refusal.

In considering “reasonable business grounds” factors such as the size and nature of the business are taken into account. These also include the request being too costly and having a significant negative effect on efficiency, productivity or customer service.

From 6 June 2023, employees have had a right of appeal to the Fair Work Commission, which now has powers to resolve flexible working arrangement disputes by mediation or conciliation, or by making a recommendation, and, if required, by arbitration.

Reasonable Adjustments

The fourth consideration is anti-discrimination laws and “reasonable adjustments”. If an employee has a disability, the club should actively engage and request the employee to provide supporting evidence regarding any special circumstances or reasonable adjustments that are required. What is considered “reasonable” again depends on the facts of each particular employee’s circumstances. However, clubs should consider how effective the adjustment would be in returning the employee to work, how practical the adjustment is and any disruptions in the workplace it may cause and of course, financial cost and the capacity of the club to meet the cost.

In summary, clubs can wind back working from home. However, there are some legal hurdles along the way, and to avoid these it would be prudent to contact us at ClubsNSW to check the club is not going to “trip up” on the journey back to the office.