Lockdown has provided an opportunity to rethink whether working from home (WFH) can and should be embraced, whether on a permanent, part time or flexible basis. Some of the potential pros and cons we have observed for employers are set out below, followed by other matters to be considered.
• Opportunity to reduce overhead costs.
• Increase in productivity with reduced distractions and commute times.
• Greater work/life balance and happier employees.
• Better prepared for a further lockdown or a different type of crisis (e.g. natural disaster).
• Difficult to maintain workflows, supervision and communication.
• Decrease in productivity, engagement and motivation for some.
• Loss of workplace culture.
• Negative impact on career development.
Consider what employment agreements say in regard to the location, hours and days of work, what changes are proposed, and whether employees need to agree to these changes. This step is particularly important where employers are planning to “require” employees to WFH, and the changes may be perceived as substantial, thereby triggering potential claims for redundancy compensation.
• Check employment agreements, whether there is a WFH policy and seek legal advice.
• Where an employee requests a WFH arrangement, consider agreeing to (and documenting) a trial arrangement in the first instance.
HEALTH AND SAFETY AT WORK
Employers are still required to ensure the health and safety of employees, whether WFH or not. This was demonstrated across the Tasman in Hargreaves v Telstra Corporation Limited  AATA 417 where Telstra was ordered to compensate Ms Hargreaves for injuries she sustained falling down her stairs while WFH in Australia.
• Implement a WFH policy that covers health and safety.
• Conduct WFH risk assessments to ensure that workplace set up is ergonomically appropriate, and risks are identified and eliminated to the extent possible.
TECHNOLOGY AND SECURITY
Under the Privacy Act 1993, all agencies that hold personal information are required to ensure that information is protected against loss, disclosure, modification and misuse. Employers need to ensure those obligations are still met when employees are WFH. This may include reviewing IT and security policies, increased server security and training on technology best practice.
• Consider the security of hardware and paperwork in a WFH environment.
• Consider updating IT and security policies and procedures.
EMPLOYEES’ RIGHT TO REQUEST WFH
Under Part 6AA of the Employment Relations Act 2000 (“ERA 2000”), employees can request a WFH arrangement. If the request is made in writing, it must be dealt with as soon as possible (at least within one month). An employer may refuse a request but only in limited circumstances as prescribed in the ERA 2000 (e.g. where what is requested would have a detrimental impact on quality of work).
• If an employee makes a written request to WFH, be familiar with the rights and obligations in the ERA 2000.
• Make sure any refusal aligns with the statutory grounds.