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While businesses may be either required or choosing to shut down given the ever-changing quarantine and business trading requirements, employers and employees may still be able to enter into arrangements allowing (or in some cases, requiring) employees to work from home.  
Location of Work

Where an employer is seeking to comply with social isolation requirements or recommendations, we suggest they determine whether any of their employees are able to work from home. If they are, the employer should then determine whether they can either direct the employee or reach an agreement for the employee to work at home.

There is no provision of the Fair Work Act 2009 (Cth) (“FW Act”) that allows an employer to direct an employee to work from home. However, implied into every employment relationship is an employee’s requirement to follow reasonable and lawful directions. Depending on the circumstances, this may include the ability to direct an employee to work at a different location than usual – for example from home, provided the change in work location does not create an unreasonable burden on the employee.1 Additionally, there may be express terms in an employment contract which states where an employee works, or that provides the employer with an ability to direct an employee to work at different locations.

Depending on the above variables, employers may have the right to direct employees to perform their work from home. Even where there is no ability to direct an employee to work from home, an employer and employee are usually allowed to agree for the employee to work from home. We recommend employers consider each employee’s individual contract of employment and the specific nature of the work they perform to first determine whether the it is feasible, and if so, how to put the arrangement in place.

Workplace Health and Safety

Where an employee is working from home, their home becomes their ‘workplace’ for that period. Given this, the employer has a duty to ensure that the employee’s home is a safe working environment. This requirement involves objectively assessing risks and eliminating any risks or minimising those risks as much as reasonably practicable. One way to assess this would be to require employees complete a form or declaration on the safety of their home for work. EMA Consulting has forms and checklists for purchase. These are already available in the portal for BuzzIQ subscribers.

It is important to note that, while employers have a duty to ensure their employees perform their work in a healthy and safe environment, employees also have a duty to ensure they perform their work with necessary care and without endangering themselves or others.

Other Matters

If an employee works from home, employers may wish to implement control systems to ensure that the employees are actually performing their work. This could include, for example, scheduled check-ins with their immediate manager or supervisor, or even some form of desktop monitoring software on the employee’s work computer. Employers should discuss with their employees any measures they wish to take to monitor work.

If an employer already has a working from home policy or procedure, or has working from home provisions in an individual employee’s contract of employment, they should ensure that they act consistently with those requirements.

Compliance

Working from home does not mean that the Employer can opt out of compliance with an industrial instrument or the Fair Work Act 2009. For example, rules about allowances, meal breaks, overtime, shift work and payroll records continue to apply regardless of the work location. Employers should ensure that adequate procedures and controls are put in place that ensure compliance whilst an employee works from home.

Require further information/assistance? If you require further information or advice, please contact one of our consultants.

1 Petchell v Co-Operative Bulk Handling Ltd [2017] FWC 2400 [89]; Randall v Aristocrat Leisure Ltd [2004] NSWSC 411 [523]–[525].
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