Working From Home & the Modern Workforce

This article was written by a human not an AI Bot pretending to know

Pre March 2020 most employee’s workdays would entail: breakfast, travel to work, work all day with lunch at work, travel home, dinner and kids.  Covid was a massive disruptor and became, through necessity, the proof of concept that Working From Home was feasible for a huge array of work. 

With the risk of Covid abated, battle lines have been metaphorically drawn as to how Working From Home features in the modern workforce: should it be an embedded industrial right like parental leave or should it be regulated by each business’ policy, workplace culture and an employer’s prerogative?  This is not just a debate about the virtues of hosting a meeting face to face v Teams.  It has had profound impacts on our economy and industry- just ask any CBD hospitality business about Thursday v Friday night trading.  It also impacts our infrastructure of roads, rail, business travel and where we chose to live and housing supply. 

The genie is definitely out of the bottle.  The question is: who will be the one allowed to ask the genie for a wish- employees or employers?

Where are We Now?

Presently there is no enshrined right for employees to Work From Home unless they have negotiated a contractual entitlement.  The Victorian Premier[1] has announced an intention to enshrine a right that may allow some Victorian employees to work at least 2 days per week at home.  We’ve not seen a Bill so it may be just politics, but it is politics that appeals to many voters.  The power of the politics of the issue was readily seen in the 2025 election campaign when the then Coalition Opposition Leader, Peter Dutton, walked back his announcement for all public servants to be required to work from the office.

In the absence of any clear rights, we have seen the Working From Home “arm wrestle” manifest itself repeatedly since 2022 when organisations began directing employees back into their workplaces.  Businesses have approached this issue within a spectrum of engagement models- sometimes deploying many of these models across different internal business functions and roles:

(i)                      Organisations who have seen productivity gains by workforce flexibility have often allowed flexibility in both the location of work and working hours. 

(ii)                    Other organisations have maintained core working hours and permitted workplace flexibility so that employees can decide between home/office.

(iii)                 Other organisations have allowed workplace flexibility of working from home but have set anchor days in the office. 

(iv)                 Some organisations have seen cost savings and moved to a full work from home model for all staff.

(v)                    Lastly, other organisations have required working from the office but with a discretion to allow staff to work from home from time to time. 

Whenever a business has made changes to its flexibility structures to push it further towards office attendance, this has often lead to push back by elements of the workforce or employee churn.  This disputation often manifests via:

(i)                      Claims of health issues if required to attend the office;

(ii)                    Claims of carers responsibilities and discrimination;

(iii)                 Flexible Work Requests[2];

(iv)                 Claims of workplace stress and bullying by the staff member against the manager who has directed the employee to work in the office.

These require intensive triaging and case management by business HR teams to deal with individual circumstances.  A one size fits all approach fails the legal tests that each of these disputes present.  Recently Westpac was subject to orders by the Fair Work Commission via an arbitration[3] after an employee, Ms Chandler, challenged Westpac’s direction, via a Flexible Work Request, that she work two days a week from Westpac Kogarah office.  Ms Chandler argued that she ought to be able to work from home, or alternatively, two days a week from a closer Westpac branch in Bowral.  The case is not a precedent as each Flexible Work Request is circumstance dependent, but it typifies the debate and legal complexities in the area. 

Where to?

This debate is likely to intensify as we move further towards automation and technology driven workplaces.  Whilst there is presently somewhat of a legal vacuum governing this space, that may not be long lasting. 

The Fair Work Commission is presently running an Award Modernisation case that looks to include Working From Home terms within the Clerks Private Sector Award 2020[4] (Clerks Award).  Both the ACTU & Australian Services Union have advanced draft clauses for the Clerks Award that would enable employees to submit requests for Working From Home arrangements.  Business NSW and Australian Business Industrial have proposed an alternative structure that “nips and tucks” clauses in the Clerks Award that may impede Working From Home arrangements so that such an arrangement can be made outside the scope of the Clerks Award as opposed via an Award regulated mechanism.  The current debate around inserting a new WFH clause is whether such a clause is necessary and the extent that it imposes triggers for Award breaches[5].  For example: the union draft clauses would see an employee[6] submit a written Working From Home request to which the employer would be required to respond within 14 days and any decision is to be based on selected considerations.  The clause also provides for either party to terminate any Working From Home by providing 6months notice[7].  The Fair Work Commission is likely to determine the case by early 2026. 

The exact shape of these rights and potential clauses are yet to be finalised and we should have greater visibility in early 2026 and the extent that any new WFH clause may be included into other Modern Awards, hence piggy backed into new Enterprise Agreements via the Better Off Overall Test. 

In the interim the key takeaways for business are that they need to take a multifaceted approach in determining how they apply workplace flexibility via Working From Home arrangements.  It is not unusual for key decision makers in this space to revert to office based work as being the norm.  This can often be attributed to a bias based on their own career development and what is needed to be successful and drive workforce engagement.  The considerations for management to weigh up include:

(a)    What are the key business drivers and what staff are needed to be physically present in the workplace to make “it” happen- eg truck drivers don’t work from home;

(b)    What roles might be undertaken remotely and of those roles:

(i)                      do the current IT systems allow this work to be done remotely- if not is the cost to enable this significant?

(ii)                   could they be performed permanently from home or is it necessary (from an operational perspective) to attend the workplace?

(iii)                 can we comply with our record keeping obligations as to when staff start/finish work such that we may be exposing ourselves to “sleeper” back-payment claims?

(iv)                 do we need to re-think our workplace surveillance monitoring and will this risk disenfranchising staff?

(c)    Employee performance management tools and the extent to which this can be practically achieved remotely.

(d)    Workforce attraction and retention- are we bleeding staff or not attracting the best candidates because our business approach lacks flexibility?

(e)    Workplace culture impacts- both permitting flexibility, workforce bonding and the avoidance of workforce apartheid of “the have’s and have nots”, especially if junior staff (most likely younger staff) enjoy less flexibility than the long timers;

(f)      Business compliance risks (eg WHS), information security and fraud avoidance.

(g)     Employee compliance risks, such as management of discrimination, bullying & flexible work requests.

It is often that many of these considerations have been over emphasised depending on the power dynamics between: operations v people & culture functions.  Either way, business needs to have clarity on its own stance, not just as a general business rule, but also broken down into different business units, business functions and teams.  It is important that there is a cohesive story behind a business policy decision as to why certain considerations outweigh others.  If business leaders cannot explain the rationale for the policy then its message is: “we’ve made an arbitrary decision about your work”. 

If you would like to discuss Working From Home issues that are impacting your business, please reach out to us at Workable Law & Industrial Relations.

[1] https://www.premier.vic.gov.au/work-home-works-families

[2] See s65 of the Fair Work Act 2009 (Cth)

[3] See Chandler v Westpac Banking Corporation [2025] FWC 3115 (20 October 2025)

[4] See the Fair Work Commission: Working from home – Clerks – Private Sector Award 2020 (AM2024/34)

[5] Being a civil penalty offence capable of prosecution

[6] With no minimum qualifying period- such as untrained & unskilled employees could lodge a request

[7] Invariably it would be the employer initiating such a termination and the period of notice is twice the length of any termination of an Individual Flexibility Agreement.