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WFH: Employment obligations in the ‘new normal’

Employers will have to be especially prudent about ensuring they uphold their workplace, health and safety obligations post-pandemic, writes Andrew Jewell.

user iconAndrew Jewell 16 October 2020 SME Law
Andrew Jewell
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With COVID-19 restrictions easing across Australia employees are slowly returning to the workplace, often on a staggered basis, and workplaces will eventually be able to welcome back 100 per cent of their workplaces on a full-time basis.

However, given the need for work from home during the pandemic and general cultural shift towards work from home, many are tipping that employers won’t revert to a model where work from home is the exception.

Assuming that the pandemic passes, and health is no longer a consideration, then no; employees do not have an automatic right to work from home. Employers may have policies regarding working from home and the Fair Work Act 2009 allows applications to be made for flexible working arrangements however neither of these guarantee a right to return to work from home. So as soon as the governmental restrictions pass employers can require employees to return to working at work.


However, while employers can require employees to work from work doing so may become a competitive disadvantage when employees have become so used to it. While the daily commute was a part of working in the CBD for many professionals that time is now utilised with the family, exercising, or even completing more work and increasing performance. So, while many employees will wish to return to work for social and cultural reasons, retaining a few work-from-home days may be considered valuable when choosing an employer, and employers who refuse to do so may find themselves missing out on candidates or being forced to pay higher salaries as compensation.

Further, employers have undertaken a massive transition to move workforces to home. This has required investment in infrastructure from basic physical equipment to complicated technological systems to allow business to run smoothly in a completely new environment. Having made that investment, it would be a shame for employers to “return to normal” and discard any improvements from the investment.

When an employee is working from home it is important for an employer to remember they still owe obligations under law.

The most obvious obligations arise under physical health and safety law and employers need to ensure physical workplaces are set up properly and safe. This includes chairs, desks and computers and may require the added expense of inspections and inventory. Of course, remote working presents difficulties and employees should be encouraged to make requests for equipment or modifications.

However, obligations extend beyond just the physical and employers should take care to ensure employees are not working excessive hours. While this may previously have been achieved anecdotally by looking around the office, in a remote working landscape excessive can easily be undertaken without notice and supervisors should take care to ensure reasonable working hours are maintained. This may mean monitoring software is required not to ensure employees are working enough but to ensure they are not working too much.

Finally, and potentially most importantly, employers should take care to monitor the mental health of their workforce. This falls under health and safety obligations but this is also good for productivity, loyalty and workplace culture. Employers should consult with employees to strike the balance between working from home or from work, and if employees are working remotely the employer should ensure support and social interaction are encouraged as much as possible.

So as Australia comes out of the COVID-19 pandemic, employers shouldn’t simply return to the way it was and should look to use remote work as an incentive, while also being sure to manage their obligations as an employer.

Andrew Jewell is a principal at Jewell Hancock Employment Lawyers.