On 23 March 2021, the Victorian Government announced the easing of coronavirus restrictions in the state. A few of the key changes were:
- Dropping the 75% cap on private and public office workers going into their place of work.
- Requiring members of the Victorian Public Service to work from the office for at least three days a week.
- Removing the requirement for employers to permit their employees to work from home if it is reasonably practicable.
These changes have a ripple effect on both employees and employers regarding the right to work from home.
The Right to Work from Home
In order to reduce the risk of coronavirus infection for both office the Victorian Government’s restrictions during the pandemic made it mandatory that “employers not require office workers to work from the office if it is reasonably practicable for the worker to work from home (or another suitable premises)”.
After experiencing working from home during the enforced ‘work from home’ restrictions, people are now more likely to want continue to enjoy the flexibility to work. The implication is that this could have a lasting impact on the way people work.
What are Employers’ Rights?
Coronavirus restrictions no longer require employers to allow staff to work from home if reasonably practicable. This means that employers now have more powers to control the workplace their employees attend and reduce the flexibility to work from home as long as they provide a COVID-safe workplace to employees.
If a staff member does not comply with a direction to work in the office, employers may be able to issue a directive for them to do so, and there are powers to support them in doing so.
However, some employees are still able to retain flexible working arrangements, including the right to work from home, if they wish to do so.
What can Employees Do?
While some employees may prefer to work in the office, others will have enjoyed the ability to work from home. The sudden removal of the requirement for employers to allow their staff to work from home can be an enormous challenge for these employees.
There are some special circumstances that may apply to certain employees which are outlined under section 65 of the Fair Work Act 2009 (Cth). If these apply employees retain the right to request flexible working arrangements, including the right to work from home. These special considerations apply to the following workers:
- A person who is a parent, or has responsibility for the care, of a child who is school aged or younger;
- A carer (under the Carer Recognition Act 2010 (Cth));
- A person with a disability;
- A person who is 55 years old or older;
- A person who is experiencing family or domestic violence;
- A person who provides care or support to a household member or immediate family member who requires care and support because of family or domestic violence; or
- A casual employee if:
- they have been working for the same employer regularly and systematically for at least 12 months; and
- they have a reasonable expectation of continuing work with the employer on a regular and systematic basis.
To make a request for flexible working arrangements, 3 criteria apply; it must be in writing, explain the changes being asked for, and the reasons for the requested change.
Employees without these special considerations will struggle to find direct legal avenues to enforce a right to work from home against their employers.
Conclusion
Paul Horvath Solicitor understands that the pandemic has been very stressful for both employers and employees alike. The recent changes to restrictions will probably add to the stress of some employees who are accustomed to working from home, as well as employers who must now decide which workplace policies to adopt in the post-COVID world.
This information is general only and is not to be taken as legal advice with respect to your specific circumstances. If you would like to discuss your employment rights or your business’ rights in these difficult times, we are here to help. Please contact the team at PH Solicitor at admin@phsolicitor.com.au or by phone on (03) 9642 0435.
Sources:
http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s65.html
https://www.premier.vic.gov.au/victoria-further-relax-covidsafe-settings
