Thinking | 28 April 2020

Flexible work as the new normal

Making flexible work 'the new normal' is important now more than ever. In our recent webinar with the Diversity Council Australia and Page Group, Employment Partner Fay Calderone discussed how embracing flexible working means employers not only reap the benefits of business continuity during times of crisis but create the foundation of a more engaged and inclusive future workforce.

Page Group Director Clare Johnson introduced the session, and Mariam Veiszadeh from the Diversity Council Australia presented the organisation's data and recommendations on mainstreaming flexibility. In case you missed it, you can watch a recording of the webinar here.

Managing compliance through the crisis and flexing for the future

With many workers across the country necessarily working flexibly, there has never been a better time to ensure flexible working practices are compliant. The forced trial for flexible working presents an opportunity for employers to develop policies, systems and procedures to weather the crisis and become 'flex' for the future.

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Working from home policies

Full-time working from home arrangements require an overhauled policy to ensure business continuity and employee productivity. Be clear on expectations such as when your employees should be online, how they should communicate, what outputs are needed from them and how these arrangements may be impacted by child care requirements and home schooling.

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Work, Health & Safety obligations and Workers’ Compensation risks

Even when your employees are working from home, you have a duty of care to ensure they are working in a safe environment. Employees can still make workers’ compensation claims and the risk of psychological claims may be particularly heightened in these isolating times.

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Bullying in the workplace

Employers must protect against workplace bullying as it is a clear health and safety risk. Employers should be aware of the legal definition of ‘at work’ and consider how to protect against bullying and liability while employees are working from home.

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Performance management

Performance management processes for employees, particularly those with access to unfair dismissal remedies, should be fair and reasonable. What is ‘reasonable’ in all the circumstances, including working from home, may vary and employers should be mindful of risks in navigating performance management discussions.

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Privacy and data breaches

Reliance on technology can result in unlawful recording and surveillance over, for example, Zoom or Microsoft Teams, both from employees or employers. This could result in misuse of confidential information and privacy breaches if not adequately protected against by employers.

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Discrimination – what is a reasonable adjustment?

Employers may be liable for discrimination where an employee claims that they have been discriminated against in refusing a request for flexible work on “reasonable business grounds”. It is vital to reconsider your business operations post-COVID-19 and whether you are legally able to turn down requests to work from home on an ongoing basis. To minimise exposure to discrimination claims, it will be necessary to consider whether evidence that work from home worked during the crisis means it is a “reasonable adjustment” to the employee’s duties that can continue post-crisis.

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Complying with Awards

Even when employees are working from home, employers must comply with applicable Award provisions including span of work hours and keeping time and attendance records for those employees entitled to overtime. There are a number of Awards which have been temporarily changed in response to COVID-19 so it is important to stay up to date with variations and the dates on which they are due to expire, although may be extended. Note in particular changes to Private Sector Clerks Award as an example of the more flexible provisions for employers.

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Time and attendance records

Employers have an obligation to keep records in relation to the hours of work for employees who have an entitlement to overtime under an industrial instrument. Annualised salary clauses in awards also impose record keeping obligations that employers must also continue to comply with.

How we can assist you to navigate the “new normal” during the crisis and beyond

We can provide information and guidance on a range of working from home legal issues that will arise in the coming months. These include:

  • assistance with the preparation and implementation of flexible work policies, employee toolkits and management guidelines;
  • assistance with protocols around appropriate virtual communication and reinforcement of core values, anti-bullying, discrimination, social media policies and grievance resolution procedures;
  • work, health and safety policies and checklists, monitoring worker’s compensation risks and preventative measures to protect against legal liability;
  • implementing procedurally fair processes and guidance on managing underperformance;
  • advice on what you can and cannot monitor, how to protect against cyber threats and on information technology policies;
  • complying with obligations under Awards and crafting individual flexibility arrangements;
  • advice on COVID-19 changes to Awards and the annualised salary provisions introduced in March 2020, including how to monitor your employee’s working hours and comply with record keeping obligations;
  • guidance on considering flexible work requests in the future including discrimination risks and consideration of reasonable adjustments and reasonable grounds for refusal; and
  • offering training to your leadership, HR, legal, risk and compliance teams on successfully implementing flexible work and managing these issues.

Contact

Fay Calderone

Fay has acted for employers for the last 20 years across a range of industries including professional services, recruitment,...

Aaron Dearden

Aaron has extensive employment and industrial relations law experience working with clients across a range of industries.

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