Legal Insights

Managing flexible working arrangements: three things to remember

By Meaghan Bare, Dale McQualter, Grace Turner-Mobbs

• 07 December 2022 • 10 min read
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Returning to the workplace can be daunting, taking steps to address perceived risks faced at work, and when travelling to and from work, can help.

1. Returning to the workplace can be daunting, taking steps to address perceived risks faced at work, and when travelling to and from work, can help.

    A key part of returning to pre-pandemic operating levels is to get your people to return to the traditional workplace. However, a barrier to returning to the workplace can be perceived concerns have about risks faced by employees at work and during travel time. So what are some of these concerns, and how can you overcome them?

    ConcernSteps you can take
    Contracting COVID-19 on public transport
    • considering flexible start and finish times to avoid peak travel times on public transport
    • offer assistance with, or access to, car parking near the office
    • provide employees with free personal protective equipment (e.g. face masks).
    Contracting COVID-19 at the office
    • maintain pandemic-level hygiene services in the office (e.g. physical distancing and cleaning/sanitisation regimes)
    • implement clear directions about not attending the office when suffering symptoms consistent with COVID-19 or other similar illness
    • provide employees with free rapid antigen COVID tests.
    Transporting equipment (e.g. IT equipment) between the home and the office
    • provide additional IT equipment so employees only need to transport the minimum amount of equipment while traveling (e.g. a second keyboard and mouse for home use).
    Wearing formal business attire at the office
    • review dress standards (e.g. dress for your day policies are becoming common in professional work environments).
    "I'm an introvert, and I work better at home."
    • implement a clear policy regarding location of work expectations, including how attendance at work interacts with compliance with WHS obligations to monitor the health and safety of employees
    • explain that working from home was a temporary response to the COVID pandemic and attending work increases in-person learning opportunities and boosts workplace culture.

    2. Employees now work from home all or part of the time, ensuring that home working environments are safe is an employer responsibility.

      Under workplace health and safety laws, the primary duty of employers to provide a safe workplace obviously extends to the home office where employees are undertaking work for the employer. Importantly, this does not change the scope of the duty, with the key point being that employers must, to the extent reasonably practicable, eliminate risks to health and safety (or minimise, if elimination is not reasonably practicable). The difficulty for employers when it comes to discharging this duty can be how to do it when employees work from a private residence and the employer is not able to inspect or monitor this workplace. So what can you do to comply with your WHS obligations?

      Tip 1: Establish a system to assist employees in ensuring they are working in a safe environment, including

      Tip 2: Engage in regular and clear communication with employees when working remotely whilst also underlying the importance of regular in-person attendance at the traditional workplace for maintaining good mental health.
      Tip 3: Monitor workloads and working hours of employees working remotely and take action when hours are excessive.
      Tip 4: Review policies to ensure they are compliant with a hybrid or remote workforce.
      Tip 5: Consider what equipment you could provide employees to enable a safe working environment (e.g. monitors, desks, chairs etc.) and appropriate instruction about correct set-up and safe use.

      3. Flexible work practices mean your employees can work from anywhere but don’t forget about laws in other jurisdictions.

      Working remotely is an amazing opportunity facilitated by modern technology, and it allows many employees to work from anywhere in Australia, or even the world.

      However, when employees seek to take advantage of working in a place of their choosing, employers must remember that managing legal obligations over multiple jurisdictions can be extremely complicated. For example:

      • Each State and Territory in Australia has a different long service leave legislative regime. This means, where an employee moves from one state to another it can impact upon the employee’s long service leave accrual, as well as when they will be able to take their long service leave.
      • Workplace safety laws in Australia are in most respects uniform but there are still some important differences. Failing to acknowledge and address these differences can result in non-compliance, which may be identified by the different safety regulators in each State, Territory and the Commonwealth. Employers should also consider the different workers compensation requirements that apply in each jurisdiction.
      • The Fair Work Act can apply to employees working overseas in addition to the workplace laws of the country where the employee is located.
      • Tax! Generally speaking, taxation systems around the globe are very complex and governments really care about ensuring they receive the taxes they consider are due to them. Which country an employee is located in can have a significant impact upon the taxation treatment of their wages.

      Addressing these jurisdictional complexities as early as possible is always recommended.

      If you have any questions about managing a flexible workplace, please contact
      Dale McQualter or Grace Turner-Mobbs.

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