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Over the past week, hybrid work has (once again) dotted the headlines. As the dust settles from the hybrid revolution, commentators have been asking whether the balance of power has shifted back to the bosses while the Fair Work Commission has tested new flexible work laws.
2023: The year of the bosses
“The years-long tug of war between employers and employees looks to have finally settled,” reported BBC Worklife.
What the article was rather dramatically referring to is the ongoing debate around remote work and how employers have been winning, and now coercing, employees back to the office – the carrot has been dumped in place of the stick, London School of Economics Associate Professor Grace Lordan said.
“Fewer than four years ago,” said the article, “a full-time employee working from home even occasionally was extremely rare”. Now, it seems likely that hybrid work is a feature, rather than a bug, of the employment landscape.
As lockdowns eased, some employers were quick to call their employees back to their desks, said BBC Worklife. Despite the efforts, many refused to budge – some for years.
“The immensely worker-favourable labour market during the pandemic – which saw employers clawing for a limited talent pool – meant employees had leverage to ask for what they wanted,” said the article.
That was until 2022, when the balance of power began to shift and employers began pushing harder for a physical return to work.
“The pendulum had seemingly swung back towards employers, many of whom announced hiring freezes – workers began having less agency in a cooling job market,” said BBC Worklife.
By early 2023, the shift was almost complete as large employers began mandating in-office days and started monitoring attendance: “As we head into 2024, employers hold more power than at any time since COVID-19.”
Though the scale has tipped away from the height of employee power, our approach to work has undoubtedly changed – the effects of which will likely be long-lasting.
Anxiety, not anxious: Flexible work application rejected by Fair Work Commission
Since June this year, the Fair Work Commission (FWC) has had jurisdiction to handle disputes over flexible work requests. This week, Lander & Rogers shared what the recent case of Jordan Quirke v BSR Australia Ltd might mean for the future of remote work.
The case concerned an application by Ms Quirke, an employee of BSR Australia Limited, to work on a flexible basis. Ms Quirke’s application was two-pronged. First, she emailed her team leader with a “mock roster”, which, she explained, would be “in line with her doctor’s recommendations”. She forwarded this email to the HR manager the following month.
Second, several months later, Ms Quirke asked her team leader to “have a chat about [her] hours (again lol)” via Microsoft Teams. Once she was told verbally that her request had been denied, Ms Quirke applied to the FWC.
The FWC upheld the employer’s decision to refuse the request on several grounds, but of particular interest is consideration given to Ms Quirke’s disability.
Under the Fair Work Act, an employee is only eligible to make a flexible work application under certain circumstances. One of these is on the grounds of their having a disability that necessitates flexible work.
Ms Quirke claimed her existing work arrangement was contributing to, among other things, her anxiety. While, the FWC said, an anxiety-related mental disorder may constitute a disability for the purposes of the act, Ms Quirke’s doctor made no mention of a formal diagnosis and therefore did not satisfy the criteria for a flexible work application.
According to Lander & Rogers, employers should also keep the following in mind when handling flexible work applications:
- Factors such as supervision, productivity, team culture, and learning opportunities provided by face-to-face office attendance may constitute reasonable business grounds for refusing a request to work remotely.
- Discrimination law could apply where an application or request for reasonable adjustments is refused unfairly.
- A request for flexible work must be made in writing.
- The request for flexible work must be “because of” the relevant circumstance referenced in the application; there must be a “causal link”.
- The employee must have been working for the employer for at least 12 months before making the application (if non-casual).
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Disability is a persistent condition that limits an employee's capacity to carry out routine tasks. It refers to anything permanent or likely to be permanent, may be chronic or episodic, is attributable to intellectual, mental, or physical impairment, and is likely to require continuous support services.
Nick Wilson
Nick Wilson is a journalist with HR Leader. With a background in environmental law and communications consultancy, Nick has a passion for language and fact-driven storytelling.
