Many are re-instating the 5-day, in-person work week with the pandemic finally ending. While doing this might seem straightforward, the legal intricacies are far from simple. Here, we set out the main points when directing employees back to the workplace.
The Basics: Lawful and Reasonable Instructions
Generally, employees are expected to follow “lawful and reasonable” instructions from their employers or risk facing disciplinary action. However, what constitutes “lawful and reasonable” can vary depending on multiple factors.
What Does the Law Say?
- Fair Work Commission: According to this body, an instruction is likely to be “lawful and reasonable” if it falls within an employee’s employment scope and is not unlawful.
- Federal Court: A more stringent test applies here. A direction is lawful only if supported by a contract of employment, an enterprise agreement, or a statute.
Employee Rights and Protections
While employers do have some latitude, employees also have several protections:
- National Employment Standards (NES): Eligible full-time and part-time employees can request flexible working arrangements, including working from home if they meet certain conditions, like being a parent or carer, having a disability, or being 55 or older, among others.
- Contractual Obligations: An employee’s existing contract may also restrict your ability to mandate in-office work.
- Discrimination Laws: Both federal and Victorian discrimination legislation protects employees from mandates they cannot meet due to protected attributes like disability or family responsibilities.
No General Right to Work from Home
While employees can request to work from home, and you must consider such requests seriously, recent case law suggests there is no general right to work from home. Multiple common law cases back this.
Navigating the transition back to in-person work is a complex task that demands careful consideration of your needs as an employer and your employees’ rights. While there’s a good chance that your directive for employees to return to the office will be lawful, it’s crucial to be mindful of the individual circumstances affecting your employees.
Considering the legal maze of employment law, seeking professional legal advice is highly recommended before taking any significant steps.
For tailored, on-point legal advice, contact our expert team here at Rankin Business Lawyers.