Introduction

As we see many businesses returning to their offices after lengthy periods of working from home due to the COVID-19 pandemic, employers are likely to receive an increase in requests for remote working arrangements. Employers will need to balance the employee desires for remote working arrangements with the need to meet business operational requirements.

A recent decision of the Queensland Industrial Relations Commission (the “QIRC”) demonstrates that employers may decline requests for remote working arrangements where there are practical and operational reasons which make them unviable.

While the QIRC decision concerned the Public Service Act 2008 (QLD), which applies only to Queensland public servants, the principles considered in the decision are similar to those that apply in relation to requests for flexible working arrangements under the Fair Work Act 2009 (Cth).

Background

The employee was a Human Relations (“HR”) advisor working for a Queensland government agency based in Brisbane. Between March 2020 and September 2021, the employee worked completely remotely as a result of the COVID-19 pandemic. In June 2021, the employee was subject to a performance review which concluded that she had exceeded or met all leadership standards whilst working from home. One 21 September 2021, the employee submitted a request for flexible working arrangements to allow her to work completely remotely from New South Wales. The employee requested the remote working arrangements as her partner was starting a new job and they wished to relocate.

The employer denied this application on a number of grounds relating to the nature and practicalities of her work. The employer noted that while remote working had been in place for a substantial period this was largely in response the “public health emergency”. While many of obligations of her role could be completed remotely, the nature of the HR advisor role also required in-person attendance at interviews, assistance to clients, preparing managers for performance management discussions and assisting with facilitated discussions. While the employee contended that they would be able to fly to Brisbane on short notice at their own cost if required, the employer found this would be impracticable given the fluid nature of COVID restrictions for travel between New South Wales and Queensland. In the event that the employee could not travel to Queensland on short notice, her in-person duties would need to be redistributed, which could potentially lead to an imbalance within the team.

The employee lodged an appeal against the decision to the QIRC under the Public Service Act 2008 (QLD) on the basis that it was not fair or reasonable and that other viable alternatives had not been considered by her employer.

Outcome

The QIRC considered the nature of the employee’s role and the impact that a remote work arrangement would have on the employer. The QIRC agreed with the employee that they had exceeded their performance duties whilst working remotely in the period prior to the request for remote working arrangements.

However, the QIRC rejected the appeal, finding that the employer’s decision regarding the request for remote working arrangements was fair and reasonable in the circumstances. The QIRC found that it was not unreasonable “for an employer to determine the operational requirements for delivery of key accountabilities” and that the working preferences of an employee needed to be balanced with the “operational requirements of the employer”. The QIRC considered that the flying arrangements would be unviable from a practical and operational perspective. Even if the employee were to work in Queensland for one week each month, at the time the request was made it would have required the employee to be in Queensland for two weeks prior to the scheduled week due to quarantine requirements. The QIRC further noted that while the HR functions had been managed remotely, it was clear that “there will be times when the most appropriate, productive or preferred way of providing human resources advice will be face-to-face”.

Upon reflecting whether the employer had attempted to find another solution to the request, the QIRC agreed there was no viable option for the employee to be living in New South Wales. Ultimately the QIRC denied the application and upheld that decision of the employer to refuse the request for remote working arrangements.

Key takeaways

• Employers are likely to receive requests from employees for remote working arrangements, which should be considered on a case-by-case basis.
• For employees and employers covered by the Fair Work Act 2009 (Cth), employers must ensure that they give a written response to an employee’s request for flexible working arrangements.
• Employers can reject requests for remote working arrangements if there are reasonable business grounds for doing so. This can include situations where there are practical and operational reasons which make the remote working arrangements unviable, such as the costs of the arrangement, and their impact on efficiency and productivity.
• In the event that an employer is rejecting a request for remote working arrangements, they must ensure that there are reasonable business grounds for doing so and that they are reflected in the written response.

Chris Oliver, Director