Covid-19 Frequently Asked Questions No. 2 – Working From Home

Our FAQs and Factsheets provide information and general advice which is current at the time of publication. With government initiatives and legislation changing quite rapidly, we will continue to service our members by updating our information as soon as possible. We encourage you to visit our Member Portal for these updates or contact our WAS team for specific advice on 1300 273 762 or at was@professionalsaustralia.org.au
Q. As I am over 60 and have health conditions my employer is directing me to work from home. No other employees are directed to work from home. Is this legal?

A. Under normal circumstances, it is a breach of the Fair Work Act 2009 (Cth) for employers to discriminate against you or treat you less favourably to other employees on the basis of your age or because of your disability (which can include health conditions).

On the other hand, employers do have an obligation to act lawfully and reasonably to mitigate health and safety risks to workers and others in their workplace. Workplace Health and Safety laws in each state and territory require employers to take every step they reasonably can to eliminate or minimise the risk of workers and others contracting COVID- 19. If a certain group of employees are more at risk because of their age or health conditions, the employer may have a duty of care to those employees to put in place extra steps to eliminate risks to more vulnerable employees. Even in circumstances where because of Workplace Health and Safety reasons it may be reasonable for an employer to treat employees differently because of their age or health conditions, it is still against the law for employees to be harassed in relation to their age or medical condition. If you feel that the manner in which your employer has communicated with you that you are required to work from home has left you feeling offended or humiliated, it’s possible that that behaviour may infringe workplace and discrimination laws and it may be possible for you to make a complaint.

This would apply also if any of your work colleagues have communicated with you in a manner or treated you in any way that caused you offence or humiliation because of your age or health conditions, where the behaviour was not strictly necessary to comply with Workplace Health and Safety laws. The circumstances of each case will be different, however, and we recommend that you contact our Workplace Advice Service via email at was@professionalsaustralia.org.au for advice regarding your individual case.

Q. My employer is asking me to sign a working from home policy. However, I do not agree with many of the clauses in the policy. Can I be forced to sign the policy?

A. Many employer policies and procedures regarding Working From Home were developed over the last two or even three decades as working from home became more and more possible due to the information technology revolution. Some policies may contain clauses that are more onerous in terms of employer or management oversight and control than are contained in your contract of employment. For example, your employer’s Working From Home policy may require you to complete a timesheet when you are not usually required to do so while working in the office. The policy may even require you to consent to the employer attending your home without notice to inspect your work station at home for Workplace Health and Safety purposes. It will depend upon the terms of your employment contract or enterprise agreement as to what extent you are required to comply with any existing Working From Home policy.

As a general rule, if your employer is requiring you to sign a policy that requires your agreement to new and possibly more onerous terms and conditions than your existing employment contract, this may constitute a request to vary your employment contract and you would be within your rights to respectfully decline. The consequences of you declining to sign the policy, however, may mean your employer may decline to permit you to work from home and this may have consequences for your ability to continue to work (and be paid for working) and you may be required to take leave if you are unable to attend your workplace. There are likely to be many situations that arise in coming weeks that will be unprecedented and were unforeseen when workplace laws and policies were drafted. We recommend you take a reasonable approach and try to negotiate with your employer to reach an outcome that is the best in the circumstances for you and your employer. The circumstances of each case will be different, however, and we recommend that you contact our Workplace Advice Service at was@professionalsaustralia.org.au for advice regarding your individual case.

Q. My immediate family member that lives with me has a health condition which makes them a vulnerable person and I want to work from home to reduce social contact with others. However, my employer has denied my request to work from home. What can I do?

A. As an employee, you do not have a legal right to work from home (if your employer denies your request to do so), unless there is a clause in your employment contract or enterprise agreement that provides that you can. In the current circumstances however, Professionals Australia’s position is that your employer should facilitate your working from home if your job can be performed remotely. Social distancing (working remotely) is the most effective way that exposure to COVID-19 can be controlled and if you have an immediate family member who is vulnerable you should have a compelling case to work from home. If your employer unreasonably denies your request to work from home, you should contact our Workplace Advice & Support team via email at was@professoinalsaustralia.org.au for advice.

Q. My employer has asked me to stand down from my employment without pay. Can they do that?

A. Under the Fair Work Act 2009, you can be stood down without pay if you cannot be usefully employed because of equipment breakdown, industrial action or a stoppage of work for which the employer cannot be held responsible. There are also some circumstances that arise because of the COVID-19 crisis that permit employers to stand down employees without pay. If your employer’s business has closed because of an enforceable government direction relating to non-essential services (which means there is no work at all for your employer’s employees to do, even from another location) or where there has been a stoppage of work due to a lack of supply for which the employer can’t be held responsible, stand down may be possible. In the current circumstances, Professionals Australia’s position is that employers should seek to try other alternatives to standing employees down, such as coming to an agreement with employees to take leave or allowing employees to work from home or perform alternative duties wherever possible. The effect of a stand-down is that you remain employed, although you are not required to perform work and you are not paid during the period of the stand down. However, you continue to accrue annual leave and personal leave entitlements while you are stood down. Your contract of employment or your enterprise agreement (if you are covered by one) may have additional provisions about when your employer may stand you down. Your employer cannot stand you down, individually, without pay if you have the coronavirus or simply because there has been a deterioration in business conditions. However, if your employer seeks to shut your workplace down due to reasonable concerns about the health and safety of its employees, it may be possible for them to engage in the stand down section of the Fair Work Act.

JobKeeper enabling stand down direction

Under the new JobKeeper provisions in the Fair Work Act, a qualifying employer may direct an eligible employee to work less hours or days, including working no hours, in certain situations.

These provisions apply to employees receiving the JobKeeper payments. An employer may give an employee a “JobKeeper enabling stand down direction” if the employee cannot be usefully employed for their normal days or hours because of changes to business attributable to coronavirus (and associated government initiatives).

In this situation, the employer may direct the employee to:

  • not work on particular days the employee would ordinarily work; or
  • work for a lesser period of time than the employee would ordinarily work on particular days; or
  • work a reduced number of hours (including no hours). Employees do not have to comply with a JobKeeper enabling stand down direction if it is unreasonable to do so in all the circumstances.
There are various factors to consider to determine reasonableness here.

If such a situation arises at your workplace, please immediately contact the Workplace Advice & Support team via email: was@professionalsaustralia.org.au 

This publication contains general information only and is not considered legal advice, nor is it a substitute for legal advice. For individual advice, please contact the Workplace Advice & Support team at Professionals Australia.

Email: was@professionalsaustralia.org.au
Ph: 1300 273 762

This information is current as at Wednesday 13 May 2020.