COVID-19 has much to answer for including for many working people changing the look of their workplaces in the short or long term as many Australian’s found themselves obliged to work from home. For many employers and employees, this was not a change that they had predicted nor one for which any forward preparation had occurred. Many employers and employees, prior to COVID-19 would have denied that their work could be effectively commenced other than in the traditional workplace.
COVID-19, however, forced workplaces to transform and to make working from home a reality. Where it was not possible, such as in retail, people were granted a leave of absence until they could return to their traditional workplaces. Faced with the gulf of work from home or do not work at all, employers and employees recovered, pivoted, and transformed in a way that no one would have predicted. Work from home became a reality.
As we move out of the worst of the COVID-19 shock and reverting to traditional workplaces is possible (subject to COVID-19 safe arrangements), many employers are now facing the challenge of resuming workplace arrangements. These challenges come in many forms but mainly occur either where employees are opposing returning to the workplace or where employers have found the work from home arrangements advantageous and may not want to return employees to a traditional workplace.
The question, therefore, arises as to who decides if employees continue to work from home or return to the traditional workplace. This is a problematic question, but ultimately the answer is the employer. However, if an employee makes an application for workplace flexibility under the Fair Work Act, it must be assessed on its merits, including where that application is to work some or all their working hours from home. The impact of COVID-19 has made declining such valid flexibility requests more difficult; however, this does not mean that employers cannot decline such requests where there are genuine business grounds to do so.
If an employer wants their employees to return to the workplace, it is generally reasonable and lawful instruction to require employees to do that. This is particularly the case where the employer has a COVID-19 safe plan in place for their workplace. Employees can not unreasonably refuse to return to the workplace, no matter how much they prefer working from home or believe that they are “better off” working from home. Similarly, employers are not required to allow employees to continue to work from home if that is not how they wish their business to operate.
The ACTU and its affiliated unions are currently preparing a “charter of rights” for working from home. This will not be an enforceable “charter of rights” but will be endorsed by the Unions as the minimum arrangements that employees should accept/agree to when working from home. This may well create expectations that employers must manage. The details of this charter are not yet known. The Fair Work Commission (FWC) has prepared a discussion document regarding working from home on the assumption that at least a proportion of those employees who were required by COVID-19 to work from home, will continue working from home post-COVID-19 and this may require some changes to existing Modern Award arrangements.
Working from home, in our opinion, is not the new normal. It is however a legitimate option in the mix of workplace flexibilities for the future. The actions of the ACTU and the FWC however suggest that there is likely to be more regulation around working from home in the future. The spirit of this regulation may well determine if working from home in the future is a viable flexibility option for many workplaces. Only time will tell how this area of employment regulation develops.
If you are experiencing any challenges in returning your employees to the workplace or struggling to manage employees in a work from home arrangement, R T Accounting & Taxation Services are here to provide help. Get in contact with one of our members.