COVID-19, lockdown, face masks, illness, border closures, working from home (WFH) and remote working. These words seem to go hand in hand in the current Australian workplace environment. Many of us are in lockdown whilst others are starting to look towards getting people back to the office (or already have).
WFH is not a new concept but has been forced on many of our businesses and tested the flexibility of workplaces to accommodate WFH needs and productivity.
Most Akyra clients have grappled with the questions and issues below.
Q1- WHAT POWERS DO WE HAVE WITH REGARDS TO WFH EMPLOYEES?
A1 – Health and Safety responsibilities still lie with the employer…
Of concern for many is the issue of responsibility if an employee injures or becomes ill whilst working from home. This has manifested in a number of ways and here is a snapshot of the type of matters which have arisen and we have dealt with recently:
- An employee injured their foot whilst “walking around” their home office
- An employee who made a complaint to their employer that they felt more “stressed” working from home because they couldn’t “switch off”
- An employee who felt “pressure” whilst working from home from her husband and kids and developed mental health issues
- An employee who complained of back problems due to using a chair in their home office (not supplied by the company)
The basic fundamental health and safety obligations will still apply – i.e. an employer, we are obligated to do what is reasonably practicable to ensure the health and safety of an employee. The employee also has obligations to ensure their own health and safety.
There is of course merit to discussions around whether the employee was engaged in the conduct of work. There are several cases which point to a distinction. To mitigate this risk, a number of steps can be taken:
a) Undertake a health and safety assessment. If it is not possible to do one in person, consider a self-assessment audit with undertakings by the employee they are being honest with their assessment and source photographic evidence from the employee.
b) Put in place a work from home policy which should cover a number of issues including employees of their health and safety obligations, procedure to request work from home and supporting forms; approval and clarity around who is providing what equipment.
c) Consider providing standard company property if it is an inherent requirement of the position – chairs and computers are a good example and potentially even tables, cameras and basic stationery.
d) Training. Consider undertaking appropriate WFH training for managers and also for employees WFH to ensure both parties are clear on expectations and standards. If this is backed by the above policy, even better.
Q2 – WFH ARRANGEMENTS – CAN THEY BE REFUSED?
A2 – Requests to WFH will fall under flexible work arrangements which are underpinned by the National Employment Standards.
Although there are some differences between award free employees and award (and enterprise agreement) covered employees there is a general requirement to:
- Discuss any request with the employee regarding a WFH request
- Take into consideration:
- needs of the employee
- effect for the employee if arrangements were made
- reasonable business grounds to refuse if this is the case.
The key part for employers is “reasonable business grounds” which focuses on the following key factors:
a) cost (high cost)
b) the effect on other employees’ arrangements
c) new employees will be required to accommodate the arrangements
d) there would be a significant loss of productivity or/and negative impact on client/customer service
To be frank, whatever business grounds are put forward, as an employer you need to ensure those arguments would satisfy a Commissioner in the Fair Work Commission. That is to say, whatever you put in writing (and you have 21 days to respond) a Commissioner will deliberate on the arguments you submit. You will need to consider all of the above to have a chance at a refusal being supported by the Fair Work Commission if it is challenged by an employee (or their representative).
Consider the case of Victoria Police v The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria  FWCFB 305 where the Victoria Police were unable to refuse a detective’s request for flexible working arrangements which included the following arguments:
a) the arrangement would Impose an unreasonable financial burden as they would need to pay the detective his full salary plus overtime allowances
b) a significant increase to the risk of fatigue-related OH&S incidents as the shifts would be longer
c) a negative impact to productivity and parity to the colleagues of the detective.
Although there were some other issues that hindered the Victoria Police in this matter, the arguments would seem to be (on the face of it) wholly justified on reasonable business grounds. The Fair Work Commission found this was not the case.
Taking this case into consideration you will need to go further than the Victoria Police to justify a refusal.
Q3 – DOES TERMINATION OF EMPLOYMENT AND DISCIPLINE NEED TO FOLLOW A PROCEDURE?
A3 – Absolutely YES you must follow a procedure for any form of termination or discipline.
If you don’t have procedure for dealing with dismissal, this is the time to put one in place. Akyra has provided details around this in previous articles – e.g.
- Defending an unfair dismissal claim – HR need to consider 3 main issues;
- The Pink Folder – senior employees and their duties of trust and confidence (3 tips for employers); and
- General Protections Complaint – huge future economic loss $pay-out due to COVID-19.
Here are some further considerations to keep in mind:
- If an allegation of misconduct is claimed (e.g. timesheet fraud, misuse of social media, misuse of leave or data theft) and, even though it may be frustrating for all involved, the allegation should be put to the employee before any further action is taken.
- Performance management should be managed in the same way even with WFH – this might mean virtual discussions instead of in person but the same premise holds true.
- Whatever is in writing and whatever has been said should all be assumed to be potentially read and/or considered by a Judge or a Commissioner. How will the risk and liability be mitigated?
KEY LEARNINGS – YOUR OBLIGATIONS AND MANAGEMENT OF WFH EMPLOYEES
As WFH is becomes more prevalent because of continued lockdowns and as the new future of work and is more widely accepted, managing the associated risks is best achieved with good planning and preparation.
Workplace policies and procedures, coupled with regular communication of acceptable conduct in your workplace will help you to avoid some of the risks or even potential and unnecessary embarrassment.
As an employer, you have a duty under WHS laws to identify and assess these types of risks in your workplace and in the workplace of WFH employees and to take appropriate steps to rectify or alleviate any problems you may encounter.
If you do not have WFH policies or documents or need assistance to prepare the documents or a review to ensure your business complies with relevant legislation, Akyra can assist you. Contact us on 07 3204 8830, for an obligation-free conversation or to discuss any queries you may have.
If you require advice or assistance with work from home policies, compliance, any people management circumstances or managing your workforce post-pandemic, contact Akyra on 07 3204 8830, for an obligation-free conversation or to discuss any queries you may have.
CONTACT US NOW to book a time to discuss your areas of potential concern and we will then provide a way forward where it might be needed.
Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not and is not intended to be, legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.
Source: https://www.lawyersforemployers.com.au January 2021.
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