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‘People will need to comply’: No right to refuse return-to-office call, lawyers say

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The survey of 322 users of the social media site LinkedIn by researchers at Swinburne University found that 35 per cent of participants would prefer to work from home every day and a majority would like to split their time between home and office.

One of the report’s authors, John Hopkins, said most employers were developing plans to allow flexible work arrangements but in some cases, they were insisting workers return to the office full-time.

Slater and Gordon principal lawyer Andrew Rich said whether workers had legal recourse to refuse came down to whether the direction from their employers was reasonable.

“If you have a contract of employment [and] it was understood that you’d work from the office … and now it’s been deemed safe for you to return [and] there has been measures put in place within the workplace so to comply with government guidelines, then, in general, people will need to comply with that direction,” he said.

There are some circumstances under the Fair Work Act where workers have the right to make a request for flexible working arrangements, including working from home, and employers must consider them.

These include if the workplace isn’t following a COVID-safe plan, having a medical condition that makes a worker more susceptible to respiratory infection, needing to care for a family member or being over the age of 55.

However, employers can refuse these requests.

Maurice Blackburn senior associate Patrick Turner said employers had a duty of care to provide a safe workplace and workers concerned about whether a direction to return to the office was reasonable should first contact their union or a lawyer.

“The consequences for refusing a reasonable and lawful direction are potentially serious,” he said, adding that they included warnings and dismissal.

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Mr Rich said there was more capacity for workers without extenuating circumstances to negotiate working from home than before the pandemic due to a change in perspective from employers.

Mr Rich said whether the current legislation needed more teeth would depend on how employers responded to the situation.

Mr Turner said there was room for reform to better protect workers’ rights, ensure safe workplaces and preserve work life balance in a COVID-normal world.

The survey for the Fair Work Commission report, released in November, was conducted in May after the first wave of the pandemic forced lockdowns across the country.

Dr Hopkins, a Swinburne University lecturer and founder of WorkFlex, said he suspected the amount of people preferring to work from home was likely to have increased even more since then as they adapted to the situation.

He said many respondents described feeling mixed emotions about returning to the office.

“People will probably be looking forward to seeing their colleagues again, but probably not as keen [to be] getting on a packed train again,” he said.

“Obviously, the pandemic hasn’t finished. There’s still a nervousness around public transport and mixing with people, particularly in areas where you can’t socially distance.”

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Dr Hopkins said people looking forward to returning to the office needed to be aware that reduced numbers might mean a change in atmosphere or culture.

“The office is going to feel different when people do return,” he said.

Office workers Teri Tran and Naomi Lions returned to work at a large corporate Melbourne CBD office for the first time since March on Tuesday.

The pair, who will be splitting their time between the office and home, want the flexibility to do both.

“You have to wear [office] clothes again, you have to do things that you didn’t have to do at home, but it’s been a nice change,” Ms Lions said.

Ms Tran said a negative to returning was a one-hour commute.

Teri Tran says her one-hour commute is one of the downsides of returning to the office.

Teri Tran says her one-hour commute is one of the downsides of returning to the office.Credit:Joe Armao

The pair said they preferred collaborating face-to-face than trying to speak to colleagues via the internet.

They also said it was easier to potentially work overtime from home and that having to leave and catch a train home was a good way to mark the end of their working day.

“You take your breaks [at work] … instead of just sitting in front of a computer all the time. You can kind of forget when you’re at home to do those kind of things,” she said.

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