The Australian experience before and during Covid 19.
~Subodhya Wijetunge Weliamuna LLM. LLB, Attorney-at-Law
Covid 19 poses different challenges to the workforce and the economy. This is a brief examination on how Australia managed to change working environment for employees to meet the challenges, encouraging people to work from home.
What is flexible working?
Through flexible working arrangement concept, legally supported, Australia had been doing well with Working from home and it is not new to Australian workforce.
Flexible working arrangement means employees being permitted to balance family, caring and other responsibilities and interests alongside their work commitments and career goals. Flexible working arrangements include initiatives such as flex time, time off in lieu, part time work, home based work, telework and job sharing[1] . Employees do not necessarily report to workplace from 9-5 or in the office cubicle. During flexible time period or at a location where he is endorsed to work, employees can work while balancing his family responsibilities. Employees and employers can agree on how, when and where the employee can work, subject to achieving the required goal set by the employer.
How Flexible Working Arrangement was Introduced.
One might find it difficult to work from home as it was not the usual routine in their working life. However, there are some countries, which have provided for mechanism to work from home through legislations and have been practicing same for years. Therefore, those countries did not find it difficult to manage the work force working from home. Australia being one of those countries, it is interesting to examine how people enjoy Flexible Working Arrangement in Australia.
Employees with family responsibility had previously requested for flexible working arrangement as it was hard to manage office work with family responsibilities. Employers were nor favorable to this idea as they did not trust their employees. Occasionally only a handful of workers were allowed to work from home. They were under the belief that the employees can work effectively only in an office environment under supervision. On the other hand, there were many practical obstacles to work from home. However, with the awareness and the advancement of technology now more and more employees are working from home. This arrangement is greatly enjoyed by the workers with care responsibility at home. As New South Wales Public Service Commission employment portal says “Flexible working means rethinking of how, when and where your work can be done”. However, it does not mean every individual or every type of work should or can be performed from home. Whoever it needs most can start the conversation of their right to flexible working arrangement with the employer.
Why Flexible working arrangements are so important? There are many reasons. Working from home or flexible reporting time is found to assist employees achieve balance between work and their personal lives and increase job satisfaction. For example, such arrangements can help parents manage the demands that come with a young child, school aged child or a child with a disability. Such arrangement may help them to drop-off and pick up their children at child care or school, caring for sick child, attending their medical needs. Employees may save some hours of commuting to their working place and can have one or two days per week where they do not need to endure a long commute.
Flexible working arrangements can also benefit businesses by increasing skilled staff retention, and enhance productivity and efficiency by helping maintain a motivated workforce with reduced staff turnover and absenteeism. Supervision is also easier.
However, many countries in the world have opted for this option due to the prevalence of “hot desking”. (This means an office organization system which involves multiple workers using a single physical work station or surface during different time periods) In workplaces today, many employers have instigated Work From Home policies, which clearly set out expectations and boundaries for employees who wish to avail themselves of such an option. European Union, United Kingdom and United States have different criteria in following flexible working arrangement.
Those who enjoy the flexible working arrangement now made to imagine that the old-school nine-to-five working day is a relic of the 20th century.
Fair Work Act 2009.
The Fair Work Act presented by the then Workplace Relation Minister Julia Gillard, came into effect from 1st January 2009, was the game changer. “The object of the Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by ……………. assisting employees to balance their work and family responsibilities by providing for flexible working arrangement[2]
While providing for legal protection for unfair dismissal right and collective bargaining, having flexible work patterns has now been recognized by the Fair Work Act. The flexible working arrangement targeted parents with school going children. The Act mainly provided for flexible hours and patterns of work rather than the location of work. It allows working from different location. The technology is conveniently facilitating work carrying out remotely without causing any risk to data or records and also without breaching the trust of customers and clients.
How was it made possible?
Section 65 of the Fair Work Act Legal provisions in relation to the Flexible working arrangement is set out in Division 4 of Chapter 2 of the Fair work Act 2009[3].
Section 65 of the Act says “ Employee may request change in working arrangements
(1) If:
(a) any of the circumstances referred to in subsection (1A) apply to an employee; and
(b) the employee would like to change his or her working arrangements because of those circumstances;
then the employee may request the employer for a change in working arrangements relating to those circumstances.
Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.
Section 65 (2) states that the employees (other than casual employees) who have worked for the same employer continuously at least for 12 months can request for changes to hours, patterns or location of work as per flexible working arrangements. If a casual employee needs to make a request he or she should be a long term casual employee who has reasonable expectation to work continuously with the same employer. In short, as long as the employees are getting their minimum entitlement, Employers and Employees can negotiate ways to make their work place more productive and more flexible. The request should be made in writing with reasons for such request. The following employees are eligible to make a request if they are:
- The parent or have the responsibility for the care of a child who is school aged or younger.
- A Carer (under the Carer Recognition Act 2010)
- Have a disability
- 55 years or Older
- Experiencing family or domestic violence
- Providing care or support to a member of their household or immediate family who requires care.
The employee’s right to request for flexible working differs from the binding employment agreement between the parties. If he is covered by an Enterprise agreement (a formal agreement on pay and conditions that abide by both the employer and employee in an individual work place), he would find a clause for his entitlement for flexible working arrangement. Both the employer and the employee should abide by the terms of the agreement as each and every enterprise agreement are different from each other. On the other hand, if the employee is covered either by a Modern award or by the common law agreement, then his entitlement for flexible working arrangement comes under the National Employment Standards. However right to request for flexibility at work is not an automatic right unilaterally changes the employment relationship between employer and employee. An employer may refuse the request on reasonable business grounds. An employee does not have a right under section 65 to appeal an employer’s decision to refuse a request[4].
Responsibilities of Employer
Once the Employer receives the request, he should respond to same within 21 days. Just as much as the employee needs to justify his request the employer too should give out the reasons. The employer can reject such request only on reasonable business grounds although the Act does not recognize the reasonable grounds, and such reasonable business ground may be:
- The requested arrangements are too costly,
- Working arrangements of other employees cannot be changed to accommodate the request.
- The request would result in a significant loss of productivity or have a significant negative effect on customer service.
Employer has to be clear on what is being granted when he allows the request of the employee. If request to change is from fulltime to part time, employer need to be specific on what are the new hours of work per day or per week. Employer must make sure that there are clearly defined expectations for the position and clear position descriptions. The requirements of both the employer and employee may change between when the request is made and when the employee’s need for such change is over. It may be useful to include how often the employer and employee meet to discuss their work. However at least one in each 6 months meeting to discuss how the arrangement is working would be useful. The Stakeholders should be informed and this communication should come from management rather than the employees themselves[5].
Employers have a duty of care to ensure the health and safety of their workers, regardless of location of work. Whether they work in a factory, office or home or even at a training center. In case the employee is allowed to work from home under the flexible working arrangement Employer has to see whether employee has all the work safety requirement at his home to carry on his work for the prescribed job from home. For an example if the employee is working on Computer from home, employer is responsible for satisfying that the Ergonomics health safety is there at employees’ home to work. Employers should also provide the same safe workplace equipment as in the company office, such as ergonomic chairs, work phones, computers, adequate computer monitors etc. Employers have a duty to ensure the home workspace has the same safety provisions as if staff were working in the company office. This includes security and fire safety. Home workers must have functioning smoke alarms, and a safe way to evacuate the premises. If an employee working from home sees clients at their home as part of the business, the employer needs to ensure they have the required level of public liability insurance.
Challenges of Working from Home:
When working from home first introduced under the flexible working arrangement, there were concerns as to whether “home” would come under the interpretation of “work place”, when it is not an office, shop or showroom. This is important as the employer is responsible for work health and safety of the employer. Home just don’t become the “workplace” just because the employee does some office work from home. If an employee is working from home at the direction of, or with the endorsement or acquiescence of, the employer, the home falls into the meaning of workplace[6].
When it comes to working from home scenarios, any doubt in the boundary between employee’s home routine and the office duty may create many questions in case of applying liability of the employer as per workers compensation law. Over the past decade, these types of scenarios have formed the basis of many workers compensation claims that have been determined by state commissions and tribunals[7].
There are few decided cases in Australian legal precedents on payment of compensation for injuries happened during WFH. Let us look at a leading case on this aspect:
In Hargreaves Vs. Telstra Corporation Limited [2011] AATA 417,
A Telstra campaign Manager who had flexible working arrangement worked two days from home and three days at city office. She got her shoulder injured requiring surgery while working from home. Her compensation claim was denied by the Telstra company
on the basis that the falls did not arise out of, or were not in the course of, her employment. The main issue before the Tribunal was whether her injuries arose out of, or in the course of her employment with Telstra.
The evidence put forward in the case showed that she fell down on stairs and on both occasions, coughing had caused her to lose her balance. On the first occasion, she was going downstairs to get cough mixture. On the second occasion, she was going downstairs to lock her front door after her son had left for school.
The Administrative Appeals Tribunal held that the employee’s injuries were compensable. In regards to the first fall, the Tribunal noted legal authority that liability may exist for injuries that occur while relieving necessities of nature, such as while on a morning tea or toilet break.
The Tribunal considered Ms Hargreaves’ first fall as having occurred during a break, given she needed to get cough syrup to continue her work. A key factor in the second fall was that Telstra had instructed her to make sure her screen door was locked during the day when she was working from home, and she had been complying with this instruction when she left her workstation at about 8.40am to lock the screen door. The Tribunal accepted that Ms Hargreaves had been directed by her superiors to lock her screen door when working from home, and thus her injury was found to occur whilst in the process of carrying out a requirement for work.
Amber Chandler, who is a Sydney-based lawyer practicing in employment law, suggests the following to protect the company and employees during Work from Home:
A work from home policy – that sets out requirements to be observed by employees while they are working from home. This would include instructions on how to set up their workplace so that it is ergonomically correct and a direction to keep their external doors locked while working from home and to notify their employer promptly of any injuries.
Insurances – A variety of insurances are required to accommodate workers at this age of work flexibility. This may include general property insurance which will cover company property up to a certain value and public liability insurance to cover customers who may be injured at your employee’s home as a result of any business activities. Employees should also be asked to check how their own home and contents policies would respond to damage to their home or property and if they are required to drive for work, that they be asked to confirm details of their motor vehicle insurance policies.
A “work from home” safety checklist – Your employees should inspect their home and complete this checklist before they commence their arrangement.
Regular communication – It is also important to note the risk of psychological injuries in any workplace. It is advisable for employers to check in with their employees from time to time to ask how they are going working from home. This will give the employee a chance to raise any issues, such as lack of support, equipment, communication issues with colleagues or management.
How did it work during Covid 19 lock down?
In remarkably a short period of time, the Covid 19 changed the ways of living and working all over the world. With the unexpected circumstances faced due to Covid 19, it was decided by the Australian government to swiftly prevent the spread of the infection among the people. However, Australia did not want the economy to crash. Government worked on medical advice by the Medial Health Advisors, who are qualified, respected and totally independent of the political arena. Government established a national cabinet consisting of the Prime Minister and all Premiers of the States and worked on a consensus and in an extremely transparent manner. On the advice of the Chief Medical Officer Brendon Merphy, the Government decided to operate essential services and to facilitate essential services, schools were kept open so that the parents in the essential services could attend the work without interruption. The private companies functioned on line. There was a partial lockdown soon, except for the essential services. Schools and day care centers were also closed but partly operated to facilitate the essential services. When the schools, Day care centers were partly closed, many working parents had to seek for flexible working arrangement not just because of the Covid 19 health concerns but to look after the children. Due to the impact of Coronavirus, a number of unions and employer association requested the Fair Work Commission to increase the flexibility and the Commission increased flexibility in some awards and number of provisions in those awards giving the employers and employees to agree on alternative working arrangements.
On the other hand, the government keeping with their Covid 19 – Economic sustainable plan, on 9th of April, the Parliament voted for the amendment of Fair Work Act 2009 to support the implementation of and operation of the Job Keeper scheme in Australian work places. This amendment to the Fair Work Regulations applies to access periods on or after 17 April 2020. It will be in place for 6 months initially. The JobKeeper scheme helps employers, who comes under the interpretation of “qualifying businesses” and not-for-profit organizations significantly affected by coronavirus to keep paying their employees. It also gives them the ability to give directions and make agreements with their employees to help manage their business in certain circumstances. Qualifying employers can claim a reimbursement of $1500 (before tax) per fortnight from the Australian Government for each eligible employee who:
- was employed on 1 March 2020
- is employed for the fortnights that the employer is claiming the reimbursement for (including those who are stood down or re-hired)[8].
Fair Work Ombudsman of Australia issued certain guideline in order to maintain smooth functioning of employer employee relationship and keeping the workplaces and economy running for Australia. So, they encourage employees and employers to work together to find the most beneficial and workable solutions that suit their individual workplaces and their individual needs, including taking different forms of leave (paid and unpaid), working from home, or taking extra precautions in the workplace.Safe Work Australia launched an online toolkit for businesses and workers on how to stay safe from coronavirus in order to protect and keep their workers.
Working from Home during Covid 19
Due to COVID 19, working from home became mandatory for many work places, imposed by businesses trying to adhere to social distancing guidelines. However, the unprecedented experience for the modern workplace while experimenting the success of flexible working, faced the challenges and multiple problems. The industries and companies had to accelerate their transformation into digital technology and get over legal barriers, and look for health and safety rules. This compelled the entrepreneurs to build new software for new normal workplaces.
Following challenges existed during Covid 19 partial Lockdown, but Australia is in the process of overcoming them
- Infrastructure development for the technology was one of the few challenges even the first world countries faced for working and studying remotely during the Covid 19 pandemic. It is the duty of Employers to ensure that employees have sufficient reception or connectivity to contact emergency services if needed. Systems access should also be tested.
- Generally Australian Workplace health and safety laws require employers to minimize risks to the health and safety of workers in a way that is reasonably practicable. Employers who let their employees work from home or remotely also need to assess the risks and ensure employee safety in that external environment. This challenging as there was no established process for remote working health and safety. Employers have to be mindful of the relevant agreement or the award that are there between the employee and them. Communicating on Covid 19 health policies during Work from home period is essential and it obviously should be online accessible at any time.
- During Covid 19, work from home arrangement, Employers are required to provide a safe workplace regardless of the location of work. But the employer was supposed to do a home work place risk assessment and due to the strict guideline on social distancing, such assessment should be done on telephone. Scope and cover of the insurances in relation to public indemnity and public liability were some of the challenges they faced during the pandemic driven changes.
- Developing a work from home policy was another challenge. Each and every employee role don’t lend themselves to home-based work and is not possible. So, creating the eligibility criteria had to be developed just as much the working schedules. Importantly, the work-from-home policy made while making it as part of a broaderHR policy response to the coronavirus. All Covid 19 health safety guideline too had to be included into these policies.
- Employers were to be clear on work-from-home ground rules. Sudden move to remotely working without proper structures and programme for supervision can be detrimental not just for the business but also for workplace relations if some employees perceive they are working harder than others. Therefore, its important to state clearly, the employer’s expectations and boundaries around work-from-home arrangements.
- Maintaining and encouraging virtual workplace network is also a challenge during the pandemic. Problem solving and sharing insights on certain issues are important yet the gather all stakeholders onto one platform via network had been a difficult task as everyone doesn’t have the same strength of the internet facility.
- Keeping in touch with each employee, demonstrate empathy toward them and their families, support and empower them to make decision in relation to their work is important to make the business going on.
- Employees are given a tax deduction for home office running expenses during the Pandemic related working from home period. Telephone and internet costs and Tax depreciation deduction are available on capital expenses such as computer table and chairs.
On a positive note on long term effects of Covid 19 related Working from home arrangements should not be overlooked. Establishment should monitor and assess the benefits and down sides of the arrangement. Those businesses who successfully switch on such arrangements now may well embrace more permanent work-from-home policies after the coronavirus emergency subsides[9].
[1] Flexible working arrangement, Public service commission, Australian Government
[2] Fair Work Act 2009 – section 3
[3] Fair Work Act 2009 – Division 4—Requests for flexible working arrangements – Section 65 Requests for flexible working arrangements –“Employee may request change in working arrangements……”
[4] Joseph Kelly, Flexible work arrangement, Professional Australia
[5] Joseph Kelly, Flexible Work Arrangement – Professional Australia
[6] Geoff Baldwin, Asking my employees to work from home – what’s the risk?
[7] Amber Chandler, Legal guidelines for work from home arrangements
[8] Fair Work Ombudsman – Corona Virus and Australian Workplace Law.
[9] Michael Croker, CA ANZ – working-from-home issues to consider during the COVID-19 pandemic
