NSW Public Health Orders amended
The Berejiklian Government has announced that important COVID-19 Public Health Order restrictions will be relaxed on 14 December 2020.
Prior to 14 December, an employer was required to allow an employee to work from home if it was practicable for them to do so. This saw working from home as the default position for many employees in NSW, especially office-based workers.
This position comes to an end on 14 December and it’s back to normal from this date.
Also, some businesses must now implement COVID-19 Safe plans in their workplace.
What does this mean for Employers?
From 14 December 2020, NSW employers are no longer required to allow an employee to work from home.
An employee in NSW can no longer rely on the Public Health Order to say they are working from home. You can now direct an employee to work from their workplace as they did before the Pandemic.
What restrictions remain in place?
Social distancing restrictions will remain in place and certain businesses will need to comply with COVID-19 Safety Plans.
For a list of businesses which require a COVID-19 Safety Plan, go to schedule 1, Column 2 of the Public Health Order.
To access a NSW COVID-19 Safe plan for you industry click here.
What is a COVID-19 Safety Plan?
COVID-19 Safety Plans are comprehensive checklists designed by NSW Health to minimise the spread of COVID-19.
The plans provide clear directions on how businesses should fulfil their obligations to minimise the risk of transmission of COVID-19 on their premises.
How do I go about returning my employees to the workplace?
Practically most employers are taking an ‘encouragement approach’ to returning to the workplace before Christmas but you are now allowed to direct employees to return as you think fit.
You will need to comply with any on-going Government advice on social distancing guidelines in order to ensure compliance with work health and safety obligations.
It is important that you conduct a review of the workplace prior to allowing employees to return to determine how they will comply with social distancing guidelines, including maintaining 1.5 metres distance between employees wherever possible.
Once it has been determined that the workplace can accommodate the return of employees, the next step will be to advise your employees of the next steps. Early communication with clear messaging is the key to a smooth return to the workplace.
We would recommend the following approach to ensure employees are comfortable and engaged through the return process:
contact the relevant employees in advance and undertake an engagement process regarding the employer’s proposed working arrangements;
seek feedback from employees regarding the proposed arrangements and consider any concerns or difficulties raised; and then
adopt an escalating re-acclimatisation approach to returning.
An important element of this will be ensuring that leaders lead by example at an early stage. This might involve a variety of options:
allowing employees who want to be back in the workplace to do so
identifying several days when everyone will return which increases progressively
identifying a number of days for people to be in the office to begin with but at their choice
identifying a date in the future when a return is required
Few of our clients are planning to do this as a ‘big bang’ but you have the right to do this if you chose to.
Award/EA consultation obligations
Please bear in mind that for some employees covered by awards or enterprise agreements, you may have to comply with the consultation clauses in the relevant instruments before changing the employees’ work location – as this activity may be caught by the relevant consultation clauses.
You should seek specific advice regarding the consultation clauses that may be applicable to your circumstances.
What can I do if an employee refuses to return to work?
Where an employee refuses to return to the workplace, your response will depend on the reasons behind the refusal.
Employees who refuse to return to work should be asked to provide an explanation.
If the employee bases the refusal on reasonable health and safety grounds, please contact us to get advice. We anticipate that the likelihood of there being a lawful ability to refuse returning on this basis will be rare (but not non-existent) as the chances of contracting COVID-19 continue to diminish.
Outside of refusals to return on safety grounds, we would recommend seeing a ‘refusal’ to return to work in the context of a request to work from home (which it in effect would be). This would be considered as:
a flexible working arrangement request under the Fair Work Act (if the grounds to make a flexible working arrangement arise from the Act); or
any other similar request in your business (based on practice or policy etc).
This will allow any dispute regarding on-going working from home to be processed through ordinary decision-making frameworks that are already in place for flexible working arrangement requests.
To be eligible to make a flexible work request under the Fair Work Act, please remember the employee must be:
a parent or guardian of a child of school age or younger;
a carer;
a person with a disability;
over the age of 55;
experiencing domestic violence; or
providing support or care to a person experiencing domestic violence.
Please remember that where a flexible work request is made under the Fair Work Act, such a request can only be refused on reasonable business grounds.
Ultimately if an employee fails to return to the workplace after being directed to do so, and without a reasonable basis to refuse (discussed above) the employee will have failed to comply with a lawful direction and as such exposes themselves to disciplinary action.
Discrimination laws?
You should bear in mind that certain categories of employees (such as employees with a disability and carers) may have added protections based on discrimination law to refuse a direction to return to the workplace.
Again, if this arises please contact us for specific advice as these situations need to be considered carefully and based on the specific facts at hand.
What can I do if I prefer employees to keep working from home?
If the employee is in agreement with this then working from home can continue.
We would urge you to ensure that this is appropriately documented including a process for review and revocation should it cease being your preference in the future. Again, we can assist you with this.
If you want the employee to keep working from home and they decline, we would need to examine their employment contract to determine whether you have the right to direct them to keep working from home. Absent this right, you may have some right to make the direction under any on-going JobKeeper rules or possibly under the changes to the Fair Work Act proposed by the Government this week.
Employees who are working from home under a longer-term arrangement will need to have their working set-up assessed to ensure compliance with work, health and safety obligations.
At the very least, you should ensure employees complete a self-assessment checklist so that you can identify whether any hazards or risks arise from the employee’s homework set-up that need to be addressed.
A helpful checklist has been provided by SafeWork NSW which you can access here.
Employers should also give employees instruction on the appropriate way to ergonomically set up their homes. Some very helpful guidance on how to ergonomically set up a home workspace has been provided by Safe Work Queensland here.
What happens if my employee is sick after returning to the workplace?
The same rules will continue to apply as throughout the Pandemic. If an employee tells you that they:
are feeling unwell and may be suffering flu-like symptoms;
have been in contact with someone who has or may have been in contact with someone who has COVID-19; or
have travelled to an area affected by the COVID-19,
they should be directed to follow the Australian Government advice and seek medical advice immediately. This would include promptly getting a COVID-19 test and self-isolating until their results become available.
Employees who are ill with COVID-19 symptoms should not return to the workplace until they are no longer suffering symptoms and have followed any medical or Government advice pertaining to their COVID-19 test.
How does this impact our ability to issue JobKeeper Directions/our current JobKeeper Directions?
The updated Public Health Order does not impact the Fair Work Act JobKeeper enabling Directions.
What has been the experience in terms of employee productivity with employees working from home?
There is no simple answer to this question, with our clients having a variety of experiences.
Academic research has started to provide an insight into productivity outcomes with:
a survey of over 6000 public sector employees demonstrating a significant perception of productivity improvements;
the Workplace Gender Equality Agency research demonstrating that 77% of respondents found working from home helped productivity; and
Swinburne University research (commissioned by the Fair Work Commission) delivering more mixed results:
34.5% of employees felt more productive working from home;
36% of employees felt their productivity was about the same; an
30% of employees felt less productive.
In simple terms, the ‘experiment’ has been too short lived to give a clear and uniform answer.
Should I try and change my on-going working arrangement now?
Businesses are on a steep learning curve.
Some businesses have seen the Pandemic as an opportunity to save office costs.
Others have seen it as an opportunity to differentiate themselves in the employment market by being more flexible about work location on an on-going basis.
Still others have realised that having employees ‘all over the place’ has eroded culture and diminished the opportunity drive engagement through informal contact especially with less experienced employees.
Others have realised that they can successfully move to a sub-contract model based on outcomes not time worked.
From an employee perspective there have been lessons learned about self-regulating working hours, effectively segregating work and home and for many managing a sense of isolation.
We have been discussing these issues with clients for many months and the best advice we can give you is not to jump too quickly into fixing some new way of work on an on-going basis.
Review all the learnings you have, understand what has worked and what has not, understand your employees’ experience, consider what others are doing and why and allow the Pandemic to end before locking in anything new.
The article first appeared via https://www.ablawyers.com.au/resources/nsw-public-health-orders-amended
December 11th, 2020
