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Boss's win in fight to get Aussie worker back in office sparks WFH warning: 'Many will be denied'

An Australian father has lost his battle to remain working from home, sparking a warning for Aussie workers.

Australian employees challenging a push to return to the office should be prepared to justify their level of productivity after a father's application was thrown out by the Fair Work Commission.

The support coach argued he should be exempt from his employer’s hybrid work policy, which stipulated he needed to return to the office for at least 40 per cent of his hours. The Adelaide dad told the workplace tribunal he needed to work from home permanently to care for his young son - who he had custody of week on, week off - and due to a bowel condition that required urgent and frequent trips to the toilet.

Salary-packaging provider Maxxia said it faced penalties if it did not meet productivity quotas and the worker’s 50 per cent output was below the 85 per cent target. The commission found it reasonable on “business grounds” to reject his request, and that his role required him to spend more time in the office to improve his output and general team culture.

Have you lost or given up a job over WFH? Contact

An office of workers in Sydney sitting at their computers.
A man will have to return to the office some of the time after losing a work from home battle in the Fair Work Commission. (Credit: Getty) (picture alliance via Getty Image)

Is it legal for your boss to force you back to the office? We chatted to a lawyer to explain it here.


Aaron McEwan, vice-president of research and advisory at Gartner HR, told Yahoo Finance there would be more employees putting flexible work refusals to the test since Labor introduced the powers under the Secure Jobs Better Pay laws.

But he said it was important to remember: “Many of these requests will be denied if they can’t be supported.”

Will I have to go back into the office full time?

Under the Fair Work Act, flexible work can be afforded to those with a disability, who are pregnant, aged 55 and older, have parental or carer responsibilities or experience domestic violence.

Having a strong desire to work from home won’t be enough to pass the ‘pub test’ for getting out of office hours.


The real question will be whether how you perform your role can be improved by face-to-face interactions, or if there is legitimate reason under the Fair Work Act for flexible provision.

In this case, the man only had custody of his son for half the time, and he rejected offers from Maxxia for flexibility with shift times or days off to balance out his caring duties, along with a proposal to move him closer to the work toilets to help with his medical condition.

McEwan said there was a strong argument in terms of “impact and value” that meant a coach should be in the office, which would extend to “case-by-case” assessments of different roles.

“There's some clear advantages for him to be doing things in person so no surprise that it's impacted productivity in that sense, and the clear message here is that it depends on the job,” he said.

What did the Fair Work Commission say in landmark WFH ruling?

Work from home in general: "The worst of the pandemic appears to have passed and the company is now within its rights to require its employees to return to the office in accordance with their contracts of employment.”

Face-to-face work 'desirable': "Face-to-face presence would allow for observation, interaction and (if necessary) coaching to improve productivity and provide him with greater support. His knowledge and experience could be more easily accessed by less experienced team members on a face-to-face basis."

Productivity dip: "He was not achieving an increase in productivity, and so it would be advantageous to observe and support him in the office."

Bathroom offer: "He did not want to use the office toilet – this was somewhat perplexing given his preparedness to use service station toilets if needed while driving around Adelaide”.

‘The worst thing a company can do’: Warning for Aussie bosses

McEwan said “blanket” policies on returning to the office could be more damaging to productivity than a flexible hybrid approach, where staff can be trusted to make decisions around when they come in.

“When people push back on being asked to come into the office, it's often because they're in the office performing work that could be done more effectively from home,” he said.

“It needs to be weighed on an individual basis. What is the job? What does the team need, and what's going to produce the best outcomes?”

The behavioural scientist warned: “The worst thing a company can do is just say, ‘Everybody in the office Monday, Tuesday, Wednesday’.”

He argued giving employees some autonomy around when they came into the office boosted productivity.

“When you look at the data, compulsory mandated attendance, where the person doesn't have a say in when people come into the office, that actually drives productivity down in a very significant way,” McEwan said.

“The vast majority of roles in the future will probably fall into a hybrid model. And the debate will be between whether it's a flexible hybrid model or more of a mandated one.”

The argument about whether a worker’s productivity is impacted by work-from-home models has been rife in Australia as the debate rages about whether many staff who enjoyed work-from-home privileges will be forced back into the office in a post-pandemic world.

Labor productivity - a marker for economic growth - has fallen significantly since the pandemic. However, new research that analysed remote work policy and revenue growth in hundreds of companies found those giving staff a choice about coming into the office outperformed those with restrictive policies in terms of revenue growth.

The Flex Index, by Scoop and the Boston Consulting Group, found fully flexible public companies outperformed their peers by 16 per cent, and those excluding the tech space - which lends itself far more to remote work - by 13 per cent.

“That gap was really surprising to us and larger than expected,” Scoop CEO Rob Sadow said.

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