Almost eight years ago, we wrote about some lessons that could be taken from The Simpsons episode ‘King-Size Homer’ (first broadcast in 1995). You will remember that Homer is so lazy that he sets up a “drinking bird” to automate pressing buttons on his home computer that is being used to monitor the Springfield nuclear reactor. What could go wrong?

Our blog raised some issues that we thought employers should consider when addressing the “emerging trends” of automation and working from home.

What a difference almost a decade makes! COVID has changed our lives in many ways, but one of the most significant was to force many employees to work at home for significant periods – with many employees wanting to continue to work from home for substantial portions of the week even after they were released from COVID-prison.

The recent changes made by the Federal Government to the Fair Work Act re-emphasise the need for businesses to think carefully about how flexible working can be managed for their workplaces. Under the “secure jobs, better pay” changes, some categories of employees in Australia, including those with responsibility for childcare, those over 55 and those who are pregnant, can make a “flexible working request” and, if the employer refuses, ask the Fair Work Commission to decide their claim.

These changes mean that employers will need to think even more carefully about whether they are prepared to allow employees to work flexibly, and what guardrails need to be in place if they (or the Commission!) allow them to do so. Employers will need to be able to stand up in front of a member of the Commission and explain their rationale for refusing to allow an employee to work in the way the employee wants to. Remember: flexible working requests aren’t just about working from home – they can include changes to start/finish times, changes to the working days in each week, job‑sharing arrangements and other changes.

If you are a sophisticated employer, this means that you will already be thinking about:

  • Whether you allow some employees to work from home permanently? Will doing so set a precedent or expectations? If so, how will you distinguish between different parts of your workforce when it comes to work from home?
  • How to accommodate employees with a disability;
  • Whether there are parts of every employee’s role that must be done in your workplace;
  • The appropriate controls around allowing employees to work flexibly, especially when working from home, such as systems to monitor and manage such employees – for instance, are regular daily video calls required? Is an ergonomic assessment required? Will you allow employees to work from home while they have responsibility for childcare? Will you require them to be in a quiet room?
  • The steps you need to take to manage your health and safety risks.

We will very likely get some guidance on some of these questions when the first cases filter through the Fair Work Commission – but until then, make sure you don’t knock over the “drinking bird”!


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