This article was originally published by Jonathan Mamaril at NB Employment Law and was republished here with permission.
Research from Money.com.au found that:
- Two-thirds (67 per cent) of Australian employees admitted they are plagued by distractions when working remotely be it TV, social media, errands or having visitors over; and
- 43 per cent spend less than half their day working productively.[1]
These results and potentially some other anecdotal views are leading to an increasing workplace issue around flexible working arrangements and working from home (WFH).
While these options can offer numerous benefits for both employers and employees, there are also a number of legal issues to consider when implementing flexible working arrangements or allowing employees to work from home. These issues include:
– The right to request flexible working arrangements under the Fair Work Act 2009;
– Whether the employee is entitled to paid leave during periods of illness or injury;
– The safety obligations of employers when workers are based at home
Flexible working arrangements requests
Requests for flexible working arrangements are now covered under the National Employment Standards (NES); as such, this provides a right for certain employees to request flexible working arrangements (such as changes in hours of work) from their employer. An employer can only refuse such a request on reasonable business grounds.
The right to request a flexible working arrangement usually is in the form of:
- Changes to hours;
- Changes to patterns of work;
- Changes to location of work.
This type of request can be utilised if there are carer or family obligations, family responsibilities which include a child or close relative with a disability, or support to immediate family or someone in the household in regards to violence.
The request can be turned down on reasonable business grounds and this includes reasons such as:
- The new working arrangements requested by the employee would not be commercially practicable;
- There is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
- It would be, from a business perspective, impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
- The new working arrangements requested by the employee would likely result in a significant loss of efficiency or productivity;
- The new working arrangements requested by the employee would have a significant negative impact on servicing clients and customers.
Employers are required to approve or reject the request within 21 days.
However, a big change has been the ability for employees to directly arbitrate any decisions on flexible workplace arrangements in the Fair Work Commission if they cannot be resolved in the workplace. This is a guaranteed dispute resolution mechanism that many, outside of Enterprise Agreement-covered employees, have not been able to access.
Work from home
Work from home has provided so many layers of flexibility and even become an employer branding exercise to attract and retain staff.
It has also led to 43 per cent of workers spending half their time productively, according to Money.com.au research.
In saying this, WFH is likely here to stay – and, amongst other issues, employers and HR need to consider the legal obligations, duties and responsibilities.
Legal HR issues to consider
1. Employment law – what contractual obligations have been put in place regarding their WFH arrangement?
This could take the form of variations to an employment contract or a flexible working arrangement agreement. It may simply be a policy in place where there are parameters for its use. For example, there may be required “touch point” days where employees are all required physically in the office on a Wednesday.
2. Health and safety – what are the health and safety risks associated with WFH?
Managing psychosocial risks is now a positive obligation that employers (and officers) need to get familiar with. Our article Managing Psychosocial Risks: How Do You Identify Them? (6 Hazards Under The Code) identifies some hazards of working from home, such as:
- isolation; and,
- remoteness.
These two hazards, without proper assessment of risk, may well turn into psychological health concerns – which in turn leads to workers’ compensation claims or even resignation.
There are also other general health and safety aspects to consider, including electrical safety, hazardous areas when walking, and even ergonomics.
3. Data protection and confidentiality – how will the company ensure that confidential data is protected when employees are WFH?
Apart from data protection, the issue of confidentiality is also a live one. Work product undertaken remotely is the responsibility of the employer. They will be vicariously liable for any actions of an employee; conversely, they also own the intellectual property of the work product of the employee as long as this is expressly covered under an employment contract (there are some implied obligations but it is best not to rely upon implied obligations).
This article only really touches on parts of the issues associated with flexible working arrangements and working from home. Cultural issues that stem from these changes and also shifting a workforce back into more in-workplace days has various challenges. For all employers and HR teams, those challenges also bring about a number of legal ones.
Jonathan Mamaril is a Director with NB Employment Law, leading the Employment Law and Workplace Relations team. Jonathan assists employers in mitigating risk and liability and advises clients on all aspects of Employment Law. His focus is on being practical and providing value for clients through education and training; and advising on matters to prevent problems from occurring and solve problems when matters become litigious and difficult.