Directing employees back to the workplace post-COVID
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:|
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:
|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.
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:
|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.|
Read more articles from the Employment, Safety & People, 2022 Year in Review
Closing Loopholes Bill: Key considerations as we head into 2024
By Meredith Kennedy, Monica Kelly, Anna Ju, Grace Turner-Mobbs, Chris Maiborn
Recommendations for employers on a raft of significant changes to the legislative landscape likely to come into effect.
The High Court agrees that Mr Harrison is not an employee for superannuation purposes
By Emma Rae
Key takeaways from the JMC v Commissioner of Taxation cases and the importance of clearly written contracts.