Post Covid-19 Orders – The Office is Open

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Post Covid-19 Orders – The Office is Open

Many Australian employers and employees alike have faced unprecedented challenges responding to the Covid-19 pandemic, with shutdowns, stand-downs, and unsustainable increases in workplace flexibilities becoming the short-term norm. Currently, each of the Australian states are beginning to lift their own restrictions with increased patronage (restaurants, cafes) allowed, partial access to public transport, etc. as the economy begins to return to the post-pandemic landscape.

How will employers wind back or embrace the flexibilities gained, including working from home?

What is the situation if an employee working from home refuses to return to work either because of concerns for their safety or simply that they have become accustomed to working from home and believe it should be their normal workplace moving forward?

Likewise, what if your employer is seeking to cut office overheads, expand operating hours, and maintain flexibilities?

Yes, the world is changing with Covid19; however, normal workplace laws continue to apply for Employers including WHS, Workers Compensation, National Employment Standards, Modern Awards, Anti-Discrimination (including illness), Adverse Action, Individual Flexibility, and Privacy laws.

With regard to safety concerns, employers have a long-held legal obligation to provide a safe workplace. In the current environment, that would mean compliance with pandemic guidelines and ensuring all staff are aware of and complying with their individual responsibilities and obligations. It would be prudent to remain in regular, if not daily contact with all employees working remotely, and having constant discussions to remind employees that the arrangements are likely to be altered or ceased as we recover from the pandemic.

With regard to employee requests, workplace flexibility has been a common feature in the various Australian public services going back to the 1980s, and to a lesser extent, private sector employers. Typically, those organisations have internal policies and procedures which governs employee requests for flexibility and provides guidance as to how those requests are managed and determined (and in some cases, subject to internal appeal).

The current arrangements arising from Covid-19 were in response to government orders, JobKeeper directions, or emergency arrangements by consent or mutual agreement.  As government restrictions are lowered, the normal arrangements must return unless alternative arrangements are negotiated through consultation or by accessing current entitlements under Modern Awards, Enterprise Agreements, Employment Contract, or legislative provisions.

New arrangements must be consulted, documented, communicated, and revised via notice periods. 

Modern Awards, Enterprise Agreements, and some National Employment Standards provide for flexibility within the workplace including care responsibilities. Any agreements should be documented in writing and outline a review date for further negotiation or consultation.

In the absence of a policy or entitlement under an Award, Enterprise Agreement, Contract, or Statutory right, an employer has the right to dictate where and when work should be performed. What the pandemic has shown, is that greater flexibility in work arrangements could well be a benefit to an employee, and assuming appropriate checks and balances are in place, provide a benefit to employers through increased productivity, reduced absenteeism, greater retention, etc.

If an employee does not want to return to their workplace, a discussion should be held immediately with the employee to discuss the situation, and subsequently, issue the employee with a written notice to return to work within a reasonable time period. It is unlikely that an argument that it is simply more convenient for an employee to work from home alone is persuasive. Likewise, an employee’s view that continuing to work from home would result in alleged productive increases, customer service improvements, and cost savings are not sustainable arguments without the support of the employer.

Rather than merely denying an employee’s request, it is advisable for employers to have a genuine discussion and be prepared to negotiate for the benefit of both parties as far as practicable. There seems little doubt that based on recent experiences, many businesses are likely to consider some form of additional flexibility as an option for employees, and to deny the opportunity may make you less attractive to employees in the marketplace.

There are potential positive and negative impacts for all sides with regards to accommodating flexibilities with significant debate to continue over time. The current social experiment may not be sustainable over time as behaviours, expectations, and processes change.

Working from home or alternative flexibilities may constitute a significant change to the employment arrangements requiring consultation, documentation, and negotiation if the current emergence response flexibilities are to continue beyond the government orders.

Employers within the JobKeeper scheme may also utilise JobKeeper directions to stage a return to work.

Of course, it is important to note that certain employees under the Fair Work Act 2009 have the right to request flexible working arrangements.

This article constitutes general advice, not legal advice. For queries about flexible working arrangements or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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