By Kevin Yee and Katrina Emmerick -
Snapshot
- The last year has shown us that many employees are just as capable of working from home as they are from the office.
- As stand-down directions are lifted and the public health situation improves, the hybrid system is becoming the new normal.
- Consultation and communication are the keys to a smooth transition back to the office.
- WHS and mental health will be important considerations when negotiating flexible work arrangements.
Twenty twenty has shown us that employees are just as capable of working from home (‘WFH’) as they are from the office, though there are of course some exceptions. What began as compliance with temporary public safety measures has resulted in many people wanting to WFH on a permanent basis.
Based on our experience as employment lawyers, there are good reasons why everyone (employers included) can appreciate WFH arrangements. WFH has reduced the corporate impact on the environment and the impact of time-consuming commutes which, in some cases, has resulted in increased productivity levels. It has also assisted many people to find a better balance between their personal and professional lives.
The situation continues to develop. JobKeeper ended on 29 March 2021 and many employers have now lifted their JobKeeper-directed stand downs. Many businesses have already made a direction to employees to return to work (‘RTW’) or are considering alternative long-term arrangements. While the employer retains a right to lawfully and reasonably direct their employees, COVID-19 considerations and their interaction with flexibility provisions in the Fair Work Act 2009 (Cth) (‘FWA’) mean it is not as simple as merely directing an employee to come back to work.
When can an employee refuse to return to work?
Many employees may not be enthusiastic about returning to the office, but employees may only refuse to RTW if they have a reasonable concern about their health and safety, or another legitimate reason, e.g. carer’s responsibilities. An employee should raise any concerns with their employer as soon as possible. To be clear, an employee’s preference to WFH is not sufficient and will not constitute a legitimate reason for refusing to RTW.
