[Australia] The back to work battle: can employees say no?

[Australia] The back to work battle: can employees say no?
20 Jan 2021

Around Australia, a back to work battle is currently being fought between office workers and their employers. The COVID-19 pandemic is under control so employees are now expected to return to their workplaces, The Big Smoke reports.

Workplace returns have reportedly been commonplace in New South Wales for some time. And now in Victoria, the scheduled date for the ‘safe return’ to the workplace of up to 50 per cent of private sector workers and 25 per cent of public sector employees is expected to be announced by the Government imminently.

In 2020, a national survey from the Fair Work Commission found that only about 5 per cent of workers - sent home to work during lockdowns - want to return to the office on a full-time while around 35 per cent want to return solely on a part-time basis.

The Big Smoke details what the law currently says about employee refusals to return:

Can I refuse to return to the workplace?

The law makes clear that if your workplace has a COVID-safe plan, your job requires you to be in the office and your employer says it is time to return; not doing so can result in disciplinary action or even termination. 

However, many employment law and HR experts suggest that there is room for further reform within current legislation to better protect worker rights and ensure safe workplaces as we move forward and adjust post-COVID.

Under the Fair Work Act, there are only a few instances where workers have the right to make a request for flexible working arrangements - including work from home arrangements as well as flexible hours - and employers do have an obligation to consider these. (Links via original reporting)

These would include if the workplace isn’t following a COVID-safe plan, if you are ‘at-risk’; have a medical condition which impacts your immunity or makes you more susceptible to a respiratory infection, or you have been in close contact with, or need to care for someone who has tested positive for COVID-19. (Links via original reporting)

Recognising employee fears

Many employers are already being flexible with their teams and making arrangements based on individuals’ personal circumstances, which is a positive thing.

However, it must be acknowledged that the emergence of COVID-19 clusters and hotspots over the December holidays has left a lot of people feeling vulnerable and uncertain about the new year. The virus is still active and highly contagious, some people will have concerns about being able to adequately social distance in an office space, using shared spaces and general hygiene standards in the office environment, as well as on their public transport commute.

Mental health considerations

For anyone living with mental health issues such as depression or anxiety, such fears can be exacerbated. Additionally, their condition may have worsened over the months of lockdown and restrictions. However, under the law, this is not necessarily a reasonable excuse to refuse to return to work. (Link via original reporting)

Employers should recognise that everyone will respond to the process of returning to the workplace differently. At present, employees are being encouraged to negotiate with employers and vice versa. This is an unprecedented time and although state and federal Governments are championing safe return to work some people will need more time and compassion from their employers and co-workers as they adjust to the idea.

Bringing employees back into the office is a process that should not be rushed.

Source: The Big Smoke

Around Australia, a back to work battle is currently being fought between office workers and their employers. The COVID-19 pandemic is under control so employees are now expected to return to their workplaces, The Big Smoke reports.

Workplace returns have reportedly been commonplace in New South Wales for some time. And now in Victoria, the scheduled date for the ‘safe return’ to the workplace of up to 50 per cent of private sector workers and 25 per cent of public sector employees is expected to be announced by the Government imminently.

In 2020, a national survey from the Fair Work Commission found that only about 5 per cent of workers - sent home to work during lockdowns - want to return to the office on a full-time while around 35 per cent want to return solely on a part-time basis.

The Big Smoke details what the law currently says about employee refusals to return:

Can I refuse to return to the workplace?

The law makes clear that if your workplace has a COVID-safe plan, your job requires you to be in the office and your employer says it is time to return; not doing so can result in disciplinary action or even termination. 

However, many employment law and HR experts suggest that there is room for further reform within current legislation to better protect worker rights and ensure safe workplaces as we move forward and adjust post-COVID.

Under the Fair Work Act, there are only a few instances where workers have the right to make a request for flexible working arrangements - including work from home arrangements as well as flexible hours - and employers do have an obligation to consider these. (Links via original reporting)

These would include if the workplace isn’t following a COVID-safe plan, if you are ‘at-risk’; have a medical condition which impacts your immunity or makes you more susceptible to a respiratory infection, or you have been in close contact with, or need to care for someone who has tested positive for COVID-19. (Links via original reporting)

Recognising employee fears

Many employers are already being flexible with their teams and making arrangements based on individuals’ personal circumstances, which is a positive thing.

However, it must be acknowledged that the emergence of COVID-19 clusters and hotspots over the December holidays has left a lot of people feeling vulnerable and uncertain about the new year. The virus is still active and highly contagious, some people will have concerns about being able to adequately social distance in an office space, using shared spaces and general hygiene standards in the office environment, as well as on their public transport commute.

Mental health considerations

For anyone living with mental health issues such as depression or anxiety, such fears can be exacerbated. Additionally, their condition may have worsened over the months of lockdown and restrictions. However, under the law, this is not necessarily a reasonable excuse to refuse to return to work. (Link via original reporting)

Employers should recognise that everyone will respond to the process of returning to the workplace differently. At present, employees are being encouraged to negotiate with employers and vice versa. This is an unprecedented time and although state and federal Governments are championing safe return to work some people will need more time and compassion from their employers and co-workers as they adjust to the idea.

Bringing employees back into the office is a process that should not be rushed.

Source: The Big Smoke

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