Thinking | 1 June 2020

New Victorian direction: employees must work from home, employers face penalties for non-compliance

New Stay Safe Directions and Restricted Activity Directions take effect in Victoria today, replacing the ‘5 reasons to leave home’ with a broader directive that Victorians can leave home for any reason, subject to certain restrictions.

One of these restrictions is that a person should only leave home and return to the workplace if it’s not reasonably practicable for them to work from home, or from another suitable location.

For the first time, the directions also explicitly require employers to keep employees out of the workplace. From today, employers are banned from permitting employees to work at their usual workplace (except where it’s not reasonably practicable to work from home or another suitable location). Employers face fines of $9913 if they refuse to comply with this and other COVID-19 public health directions. Spot checks will continue across Victoria, and employees have been encouraged to report employers who direct them to return to an unsafe workplace.

Whether it’s reasonably practicable for your employees to work from home depends on your business and each employee’s circumstances, such as whether employees can work safely from home, the suitability of duties being performed at home and workflows and expectations. A blanket approach – for example, requiring all employees in a certain team to return to the workplace without a compelling reason – is unlikely to meet this threshold.

While these directions only apply until 21 June 2020, Victorian Premier Daniel Andrews has indicated that Victorian employers will be required to keep employees working from home until at least the end of June 2020.

For those employees who aren’t able to work from home and are returning to the workplace, employers must remember their work health and safety obligations to consult about potential risks. This includes assessing the risk COVID-19 presents to health and safety, taking into account employees’ views, and deciding on control measures to minimise the risk of exposure to COVID-19 in the workplace. More detailed work health and safety guidance can be found on the Safe Work Australia website and Worksafe Victoria website. Employers must also consider other complex legal risks including privacy, discrimination and Fair Work Act 2009 (Cth) compliance. You can read more in our article ‘How do I decide who returns to the workplace?’.

For the latest government directions, visit the Department of Health website in your State or Territory. In this fast-changing landscape, it’s more important than ever to seek legal advice about your return to the workplace plan. Contact us and visit our COVID-19 Resource Centre for more information.

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