Many employers whose employees have worked at home for an extended period during the pandemic are currently giving consideration to what arrangements should be implemented for the future.

Issues for employers to consider include:

  • Employers have broad rights to issue “lawful and reasonable” directions to employees, and employees have a duty to comply with such directions. This includes directions relating to the location of work. However, skill and labour shortages mean that businesses that do not offer flexible work arrangements to employees, in jobs that can be performed remotely, may find it increasingly hard to attract and retain quality staff.
  • Hybrid work models (e.g. 3 days in the office and 2 days at home) have become very common in workplaces where employees are able to work productively from their homes. Generally, employers have reported that their employees in these types of jobs have worked productively.
  • Of course, not all jobs can be performed at home, and even where work can be performed at home, there is often a need for employees to attend workplaces for team meetings, training, collaborating with other staff and engaging with customers, etc.
  • It is of course best to consult with employees and endeavour to reach agreement on working arrangements for employees who have been working from home during the pandemic.
  • Are there any requirements in a relevant Public Health Order which requires that an employer allow its employees to work from home where practicable?
  • Are there any relevant provisions in the employee’s contract of employment specifying that the employee will work at particular work location/s or as required by the employer?
  • Has the employee requested flexible work arrangements under section 65 of the Fair Work Act 2009 (Cth) due to their caring responsibilities? If so, the employer cannot unreasonably refuse the request.
  • Would a requirement to attend the office or other workplace at this time indirectly discriminate against the employee due to a protected attribute (e.g. a disability, caring responsibilities, etc.)?
  • WHS and workers’ compensation laws apply when employees are working from home. Safework Australia and State WHS regulators have published useful guidance material for employers.
  • Awards and pay record-keeping requirements apply when employees are working from home.
  • It is useful for employers to review their written Working from Home policies to ensure they are up to date.

If you would like more information about directing employees to return to the workplace, please contact Ai Group’s Workplace Advice Service on 1300 55 66 77. Alternatively, if you would like advice or assistance with drafting or reviewing contracts of employment and policies that deal with working from home and location of work, we would be happy to assist from any of our Ai Group Workplace offices in Sydney, Newcastle, Melbourne, Wollongong, Brisbane, Adelaide or Perth

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