Can employees choose to work from home?

Needless to say, 2020 was a year like no other.  One of the big changes that occurred for many people was the need to work from home. Now that the Victorian Government has withdrawn its regulations that required workplaces to let staff work remotely, workplaces are now able to have  all of their staff physically working from their business premises. But can employers require employees return to the workplace and can employees insist on working from home?

As many people have become used to working from home, and many people now prefer this for the obvious reasons of a) being able to have your pets as workmates, b) avoiding long commutes and c) being able to get your washing done during the day, it is no wonder that some workers are resisting the call to come back to work in the office.

While we all hope that working from home won’t become a necessity again (think lockdown and home school – argh!) for some employees working from home, for at least a few days a week, may be something they would really like to keep doing and which they feel they can be done productively.

While flexibility and working from home comes naturally to some workplaces, others may currently be feeling like they are breaking new ground or feeling uncomfortable about people working from home when this is no longer required.  We understand that this may be a huge cultural and practical shift for many workplaces.

So, where do both employers and employees stand?  Can employers make their staff come back into the workplace? Can staff insist that they be allowed to work from home? They may argue that it worked fine before and in fact, many people say they are more productive at home without the social distractions of the workplace.

While there are obvious social arguments for the pros and cons of working remotely, today we are going to look at where businesses and employees stand from a legal perspective.

But before we get into that, I would encourage all businesses to work with their employees to come to a mutual agreement about workplace flexibility, without having to resort to the law to support your position. You should look at how things worked in the past, discuss the challenges and agree on the rules. If you aren’t quite convinced, have a trial period and review it again in a few months.

But if that seems unlikely to work, or someone won’t take no for an answer, lets’ get legal for a minute.

If you are an employee and your employer directs you to return to the workplace, then it is likely you will be required to head back into the workplace if the following apply:

  • Your workplace is lawfully open and employees are permitted to work on the premises ( Dan (or James) have given you the green light to get back to the office and DHHS haven’t shut you down);
  • The work environment is safe to work in. Your workplace is reasonably adhering to any rules around capacity or physical distancing, are encouraging good hygiene and have a COVIDSafe plan in place (they are doing all the things they are meant to be to keep you safe);
  • You are not unwell or required to self-isolate or be in quarantine (keep your germs to yourself people!);
  • It is not unreasonable that you work from the work premises. Is there any reason why it would not be reasonable for you to return to the workplace, keeping in mind that what is considered reasonable will differ between workplaces? For example, perhaps you could argue that having to be on public transport for two hours a day, five days a week, may be too big a risk to your health right now (and just to be clear, arguing that it is unreasonable because your puppy will be lonely at home may not cut it (yes, I have a new puppy too…)).

If you are now back in the workplace but find yourself reminiscing about the good old days of working from home and would like to be allowed to do this again, even if just for a day or two per week, we encourage you to raise this with your manager.  You may choose to discuss some of the following if they are relevant to your situation:

  • That working from home was very productive. It worked well in the past and there is no reason why it won’t in future;
  • The home environment is less distracting than the work environment. You can focus on tasks without interruption;
  • That you are flexible in attending some face-to-face interactions and can come into the office occasionally if absolutely necessary;
  • That you could work from home on a part-time basis on regular days;
  • That you can teleconference for meetings on your home days;
  • That you will set up a permanent home office to ensure any risk to health or safety is mitigated.

As an employer, asking your employees to return to the workplace where it is safe to do so would be considered a reasonable and lawful direction and generally, employees will need to follow this direction. Employees do not have the right to dictate to their employer that are going to work from home.  This is a decision for the employer.  As an employee, unless you have a right to request flexible work arrangements under the Fair Work Act (e.g. as a carer), you do not automatically have a right to request that you can work from home, even if this was how you worked for the majority of the past 12 months due to COVID.

We recommend that any arrangement be put in writing so everyone is clear about when the employee will work remotely and any rules that apply.  Any request to work remotely should be considered along with any other request for flexibility and should be reviewed at least annually, to ensure it is working for the business.  We highly recommend all workplaces have a workplace flexibility policy to guide decisions about such requests in a structured way.

There are many benefits to working remotely for both the employer and employee and many employers are successfully allowing employees to remain working from home.  So, we encourage employers to consider all requests and keep an open mind.

If you are a business and have received a request for flexibility but are not quite sure about how to respond, or you are an employee looking to request flexible work arrangements, please call us today on 03 5434 6666 (Bendigo) and 03 5472 1588 (Castlemaine) for a no obligation chat about how we may be able to help.