WFH 2026: Navigating employment law during the fuel crisis

Due to the global fuel shortage, working from home (WFH) has become an issue that many businesses will need to manage.

As commuting costs soar and fuel availability becomes unpredictable, South Australian businesses must navigate a complex legal and practical landscape. Here are a few things we think businesses need to start thinking about: 

1. The Legal Framework: Fair Work Act 2009

Many businesses will now have WFH policies that govern when employees can make and how businesses can respond to requests. For the most part these should be followed.

However, workplace policies are not the only thing to consider when deciding WFH requests. For some employees, their request may constitute a request for a flexible work arrangement under s65 of the Fair Work Act (FW Act).

Particular requirements have to be met in order for it to be an eligible request for flexible work arrangements, including that the request be in writing, that certain circumstances exist in relation to the employee, and they have been employed for at least 12 months.

However, if those requirements are met, the employer can only refuse the request under certain circumstances set out in s65A, including that the refusal is on reasonable business grounds.

Defining ​“Reasonable Business Grounds” for Refusal

To decline a request, employers must provide a written response within 21 days and must set out the ​“reasonable business grounds” relied on.

The FW Act provides that reasonable business grounds can include:

a. Excessive Cost: The requested arrangements would be too costly for the employer.

b. Lack of Capacity: There is no capacity to change the working arrangements of other employees to accommodate the request.

c. Impracticality: It would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the request.

d. Loss of Efficiency or Productivity: The arrangements would likely result in a significant loss in efficiency or productivity.

e. Negative Impact on Customer Service: The arrangements would likely have a significant negative impact on customer service.

2. Work Health and Safety (WHS) & Compensation

The Work Health and Safety Act 2012 (SA) applies to all workplaces. The WHS Act defines ​“workplace” as a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.

• Employer Obligations: Employers must ensure, so far as reasonably practicable, the health and safety of workers. This includes briefing staff on ergonomic assessments and hazard reduction at home and ensuring equipment taken home is tested and safe.
• Worker Obligations: Employees must take reasonable care for their own health and safety, including taking all reasonably practicable actions to minimise risks in their home environment.
• Workers Compensation: The Return To Work Act 2014 (SA) covers injuries arising from employment, which includes while employees are WFH. It is important to educate employees about minimising hazards at home. For instance, a worker tripped over their puppy fence at home while on their lunch break and it resulted in an accepted claim.

3. Ensuring Security and Confidentiality

For roles involving sensitive data, best practices include:

• Secure Storage: Keep hard copies of sensitive information where they cannot be viewed or damaged by others in the house, such as young children.
• Device Integrity: Do not share work computers in the home and shut them down when unattended so they cannot be accessed by others.
• Network Security: Use secure Wi-Fi only; avoid public or neighbourhood connections.

Action Plan for Businesses

It is important to note that if an employee is able to make, or has made, an eligible request for flexible working arrangements, the FW Act now contains a dispute process that permits it to arbitrate. 

The best defence in a dispute is to follow and document the process and requirements in s65A and ensure that you are comfortable with explaining and relying on the reasonable business grounds for refusal.

For other requests that are not eligible for flexible working arrangements, ensure that you follow the process and requirements in your own WFH policy. Employees making these requests will not have access to the dispute mechanism in the FW Act.

We can assist with reviewing or drafting WFH policies, managing and responding to employee requests or providing advice and representation in disputes before the FWC.

Contact the South Australian Business Chamber Workplace Relations Team or the Business Advice Hotline on 08 8300 0000 (Option 1).

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