Legal Insights

Directing employees back to the workplace post-COVID

• 07 December 2022 • 10 min read

Directing employees back to the workplace post-COVID, don’t forget to check:

You are complying with applicable contractual obligations and workplace policies.
You are complying with applicable award/EBA and OHS consultation obligations.
You are identifying and mitigating any employee-specific OHS risk.

Directing employees back to the workplace post-COVID, don’t forget to check the following:

	Things to be aware of:
Contractual obligations	A direction to return to work at the office/shared workplace must be lawful and reasonable. First and foremost, this means the direction for an employee return to the office must be consistent with the employee’s contract of employment. Most employment contracts will identify the location of work (e.g. “Your location of work is Maddocks, Level 25/727 Collins St, Docklands VIC 3008”), in which case it is likely that the employer can refer to the contracted location as authorising the direction. However, sometimes contractual terms are more complicated. For example: The contract accommodates for flexible work locations, however, the employer may require the employee to attend the office when it is reasonably necessary. In this case, the employer will need to justify returning to the office is ‘reasonably necessary’ on the days the employee is directed to attend. The contract doesn’t specify a location of work, but accommodates for the employer specifying work locations subject to providing the employee ‘reasonable notice’ of the change. In this case, the employer must ensure that the direction to return to the office is provided to the employee a reasonable time before the set return date.
Workplace policies	Employers should comply with their own workplace policies and procedures to ensure that a direction to return to the office is ‘reasonable’. Workplace policies and procedures can sometimes be implemented and then forgotten about, but forget about them at your peril. If you issue a direction to return to the office/shared workplace which is inconsistent with a specified process or procedure, you may find employees objecting to the direction on the basis of the inconsistency. This may result in you needing to start the whole direction process over again so that you can remedy the issue.
Award/EBA/WHS consultation	Be aware of consultation requirements which can be imposed by relevant Modern Awards, enterprise agreements or occupational health and safety laws (and even internal policies). Whether consultation about a proposed direction to return to the office is required will depend upon the specific circumstances of the direction and your workplace. For example: The Clerks Award requires that consultation occur in respect of ‘major workplace changes’ that are likely to have significant effects on employees, and ‘significant effects’ are described to include being transferred to other work locations. However, you may consider that the direction to return to the office/shared workplace does not constitute a major workplace change within your workplace because it is not a major change in the production, program, organisation, structure or technology of the organisation. A return to the office/shared workplace and the policy changes that will come with new working arrangements (e.g. flexible and hybrid working arrangements) are likely to represent significant changes that impact upon health and safety (and general wellbeing) of employees, so obligations for employers to consult with workers under occupational health and safety laws may be activated.
Identify employee WHS risks	Employees can have health conditions which may impact upon your ability to direct the employee to return to a shared workplace. This means that employers should accommodate for the possibility that a blanket ‘in the office rule’ may be inappropriate for a particular employee. In practice, health conditions which would prevent a person complying with a direction to return to the office entirely will be rare, especially if you can take steps to minimise the risk while the employee is attending the office. Nevertheless, if you do encounter this within your workplace, you may need to engage with the employee about their condition, undertake/implement an individualised risk assessment, and obtain medical advice if necessary.
A change in circumstances	An employee may have had a change in their personal circumstances since they were the last working in a shared workplace, for example, caring responsibilities for children. You should consider your obligations under equal opportunity/anti-discrimination legislation and any flexible work policies when considering an employee’s request for particular arrangements. This can be complicated if an employee has arranged their circumstances to suit particular family obligations (i.e. moved to a more distant location or foregone child care). Ensure your policies reflect your business needs and carefully document your reasons for allowing, allowing in part or denying particular requests, including whether the arrangement is temporary and to be reviewed at a particular point. See also our article on Managing flexible working arrangements: three things to remember.

If you have any concerns about how to identify you are complying with your legal obligations when making a direction for employees to return to the workplace, please contact Grace Turner-Mobbs or Dale McQualter.