The Remote Working Bill was published in January 2022. This arises from the publication in January 2021 of National Remote Work Strategy.
The law, when it is enacted, proposes to do a few things:
- Oblige the employer to have a remote work policy
- Permit employees to request to work remotely
- To have a consultation once the request is made
- To provide a reason in writing if the request is denied
- To allow the Workplace Relations Commission to grant redress in certain circumstances of the law being breached
Legal experts have raised some reasonable questions and areas which may require further thought and clarification.
The first such are the definition of an employer in the bill as it may exclude certain types of non-typical workers such as agency and temporary workers.
Secondly, the employee must provide a ‘self-assessment’ as part of the request. This will involve providing five pieces of information including
- An assessment of data protection and confidentiality
- Ergonomic suitability of the workspace
- The date of the most recent request to work remotely
- The proposed remote working location
- The proposed start date and number of working days
Thirdly, the employee must have six months continuous service and will have to wait 12 months before submitting a further request.
Fourthly, the employer can deem a request withdrawn if the employee fails to provide additional documentation requested by the employer or fails to meet the employer to discuss the request.
Fifthly, head 12 of the bill provides thirteen grounds for refusing the request. These are described as ‘business grounds’ and may include, but are not limited to, the following:
(a) The Nature of the work not allowing for the work to be done remotely
(b) Cannot reorganise work among existing staff
I Potential Negative impact on quality of business product or service
(d) Potential Negative impact on performance of employee or other employees
I Burden of Additional Costs, taking into account the financial and other costs entailed and the scale and financial resources of the employer’s business
(f) Concerns for the protection of business confidentiality or intellectual property
(g) Concerns for the suitability of the proposed workspace on health and safety grounds
(h) Concerns for the suitability of the proposed workspace on data protection grounds
(i) Concerns for the internet connectivity of the proposed remote working location.
(j) Concerns for the commute between the proposed remote working location and employer’s onsite location
(k) The proposed remote working arrangement conflicts with the provisions of an applicable collective agreement
(l) Planned structural changes would render any of (a) to (k) applicable
(m) Employee is the subject of ongoing or recently concluded formal disciplinary process
If you read through the 13 business grounds set out above, you will see there is a large deal of power remaining with the employer in turning down a remote working request.
Finally, the Workplace Relations Commission (WRC) will be able to award up to four weeks’ pay in respect of a successful complaint from the employee to the WRC. The grounds on which complaints may arise are set out in Head 13 and concern breaches of the procedure set out in the bill/act.
However, there does not seem to be any penalty if the employer fails to introduce a remote working policy or fails to consult with the employee, even though both of these are requirements of the bill.
The proposed law in this area appears to be of limited benefit, although this remains to be seen. It seems that there are so many ways by which the employer can simply refuse the request that it may be of little practical effect if the employer is set against it.
On the other hand, there may be employers who will take a view more in keeping with the purpose of the proposes legislation and genuinely give serious consideration to remote working requests.
Let’s wait and see.