Managing your workforce during COVID-19
7 October 2020
Q: How do I manage employee requests to work from home due to COVID-19?
A: CCER has received a number of enquiries about how to manage the workplace during COVID-19, one being whether it is possible to require that employees work from the office and what happens if an employee refuses to.
Working from home has become widely available for a lot of employees during the pandemic and has at times been a consequence of government directives and encouraged by public health orders. However, despite the easing of restrictions in some locations, and the introduction by employers of measures to support COVID-safe working, many staff have continued to work from home where the work can reasonably be performed from home, which can raise issues when other cohorts of staff have returned to on-site working.
In NSW, the COVID-19 Public Health Order provides that, “an employer must allow an employee to work at the employee’s place of residence if it is reasonably practicable to do so.”
Additionally, under the existing provisions of the Fair Work Act employees can request flexible work arrangements if certain circumstances exist.
One question which has arisen during the pandemic is whether it is either reasonable or lawful to direct an employee to work in the office, such as to trigger consequences where an employee refuses to comply.
There would appear to be a number of possible scenarios where an employee who insists on working from home could make a claim against their employer, and this could come in the form of unfair dismissal, general protections claims, breach of contract cases and even industrial disputes where there is an award or agreement in place.
Additionally, for employers who refuse to let staff work from home where this kind of working arrangement is possible, such employers may find it challenging to be able to defend themselves against potential consequences if any employee happens to contract COVID-19 (even if the contraction is unable to be directly traced to the workplace itself). In particular, the risk of exposure of any infected staff member within a workplace is high.
CCER’s advice to members has been to explore the concerns of employees through consultation and not to close off discussion about their safety concerns, and any health issues they may have (or in their household) which contributes to any anxiety they may be feeling. While this approach can be time consuming, holding a respectful and consultative dialogue with staff is more likely to reduce the risk of litigation and ensure that work can continue. Each case raises its own particular facts and circumstances, so it is always recommended to contact us if you have questions.
Q: Can I make staff take annual leave or shut down the office?
A: Another impact of the pandemic, with both domestic and international border closures, has been the cancellation of holiday plans. This has had the effect of employees having increased leave balances, resulting in greater leave liabilities for employers. CCER has had enquiries from members as to how they can implement leave reduction measures to reduce these balances.
As well as where possible considering options requiring employees to take annual leave, another way may be to implement a shut down, something that many businesses do over the Christmas/New Year holiday period.
For award/agreement free employees, the Fair Work Act has provisions which allow an employer to require an award/agreement free employee to take a period of paid annual leave, but only if the requirement is reasonable. The Act provides that a requirement to take paid annual leave may be reasonable if, for example:
- the employee has accrued an excessive amount of paid annual leave (an excessive amount of annual leave is usually defined as being over 8 weeks or 40 days annual leave); or
- the employer’s enterprise is being shut down for a period (for example, between Christmas and New Year).
As noted above, any direction to take annual leave must be reasonable, taking into account the relevant circumstances of the matter. One relevant factor in whether the direction is reasonable is the amount of notice provided to staff – it is always best to give staff sufficient notice to enable them to plan their holiday leave.
Modern Awards and Agreements may contain different provisions for directing staff to take leave so it’s necessary to check these instruments and review the provisions around excessive leave.
For any members who would like further information or have any questions, please contact us on 9390 5255 or email@example.com.
Disclaimer: CCER does not give legal advice and this information should not be taken as such.