Covid 19 has much to answer for including for many people changing the look of their workplaces in the short or long term. Many Australian’s found themselves forced to work from home. For many employers and employees this was not a change that they had anticipated nor one for which any forward planning had occurred. Many employers and employees, prior to coronavirus would have denied that their work could be successfully undertaken other than in the traditional workplace.
Covid 19 however forced workplaces to innovate and to make working from home a reality. Where it was not possible, such as in retail, people were furloughed until they could return to their traditional workplaces. Faced with the dichotomy of work from home or don’t work at all, employers and employees rallied, pivoted and innovated in a way that no one would have anticipated. Work from home became a reality.
As we move out of the worst of the Coronavirus impact and returning to traditional workplaces is possible (subject to Covid safe arrangements), many employers are now facing the challenge of returning employees to the workplace. These challenges come in many forms but primarily occur either where employees are resisting returning to the workplace or where employers have found the work from home arrangements beneficial and may not want to return employees to a traditional workplace.
It is fair to say that working from home as an option for workplace flexibility is with us to stay. Although once thought of as “impossible” by many businesses, we now have plenty of evidence that it can work and, in many instances, can work well. Employers have benefitted from increased flexibility and many employees report preferring working from home particularly where they previously engaged in a substantial commute. There is no solid evidence at this time about the genuine impact on productivity.
The question therefore arises as to who decides if employees continue to work from home or return to the traditional workplace. This is a vexed 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 of their working hours from home. The impact of Covid has made declining such valid flexibility requests more difficult, however this does not mean that employers can’t 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 a reasonable and lawful instruction to require employees to do that. This is particularly the case where the employer has a Covid 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 promulgated 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 to work from home, will continue working from home post Covid and this may require some changes to existing Modern Award arrangements.
Working from home, in our view, 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 indicate that there is likely to be more regulation around working from home in the future. The nature 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, we are here to provide assistance. Contact our HR Consulting team at email@example.com, phone + 61 7 3218 3919 or via the form below:
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