Australia: Can employers advertise a job as work from home and then change their mind?

There has been an increased demand from Australian workers to work some or all the time from home (proven a viable option during the COVID-19 lockdowns) due to the flexibility, transport time and cost reduction, and impact on their wellbeing of performing their role remotely.

While some workplaces have instructed staff to return to the physical office full-time or a minimum number of days per week, others have implemented ongoing flexible work arrangements and use this as a drawcard to entice new employees.

Check your contract

Employees signing a new employment agreement need to ensure the contract wording reflects any agreement in relation to the location of work, regardless of what is verbally agreed. Specifically, whether the employer has discretion to change the location of work without breaching the employment contract.

Unless the ability to work from home is cemented in the employment contract, your employer may be able to tell you to start working in the office if the direction is lawful and reasonable.

Misleading job ads

Employers who misrepresent a role as being remote not only damage their credibility but also open themselves up to legal issues under the Australian Consumer Law.

Section 31 specifically prohibits a company from doing anything likely to mislead people about the availability, nature, terms or conditions of employment – such as promoting a role as remote or hybrid with no intention of allowing the employee to work from home.

Flexible work arrangements

Employees who do not have a right to work from home in their contract can still request a flexible work arrangement in some circumstances.

Current legislation gives employees a legal right to request flexible work arrangements for reasons including disability, parental or carers responsibilities, pregnancy, experiencing family violence or if they are over 55 years of age.

There is an obligation for employers to consider and respond to whether a flexible work request is reasonable given the employee's circumstances. This may include discussing it with you and attempting to reach an agreement by accepting the request, refusing the request or negotiating changes to suit both parties that differ from the original request.

Employers can refuse a flexible work arrangement on reasonable business grounds provided they have genuinely attempted to make changes to accommodate the request.