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COVID-19 The Aftermath - returning to the workplace

By Troy Wild, Peak Services Legal Practice Director

As we examine the chaos that has been the COVID-19 pandemic and as the government begins to ease restrictions, councils will need to turn their minds to what the workplace will now look like as employees begin to return to offices around Australia. 

For months now, a large proportion of the country’s workforce has been working from home, in line with the government’s recommendations, to help slow the spread of the COVID-19 virus and ‘flatten the curve’. Many businesses found themselves needing to swiftly adapt to a new way of working and invest in and arrange the appropriate hardware, IT systems and video conferencing technology such as Zoom, to enable employees to work remotely from home.  

Working from home over the past few months has produced many benefits for both employees and employers alike, including, in many cases, an increase in productivity which can be attributed to a variety of reasons, such as eliminating the work commute.  In fact, the working from home transition has proved so successful that councils should prepare themselves for the likelihood that many employees may want to work from home on a permanent basis or, at the very least, a few days a week on a continuous basis. 

Councils need to be aware that employees have a legal right under the Industrial Relations Act 2016 (the Act) to request a ‘flexible working arrangement’. Section 27 of the Act provides that an employee may ask an employer (council) for a change in the way the employee works, including the place where the employee works (which could include working from the employee's home). The employee is required to make the request in writing and must state the reasons for the request. 

In accordance with section 28 of the Act council can either:  

grant the request; or 

grant the request in part or subject to conditions; or 

refuse the request, only on reasonable grounds. 

Council may grant the request in part or subject to conditions, or refuse the request, only on reasonable business grounds.  Council must give the employee written notice and reasons for its decision within 21 days after receiving the request. If council does not provide an employee with a written decision within 21 days of receiving the employee’s request for a ‘flexible working arrangement’ then the request is deemed to be refused under section 29 of the Act. 

What is considered ‘reasonable grounds’ for a refusal (or for a partial or conditional grant) will vary according to the role the employee performs and the individual circumstances and needs of each council. However, some examples of what may constitute ‘reasonable grounds’ to refuse an employee’s request to work from home include, that the arrangement would: 

be too costly for council (i.e. if additional equipment had to be purchased to allow the employee to work from home);  

likely result in a loss of efficiency or productivity; 

negatively impact customer service; 

involve changing the work arrangements of other employees which would be impractical. 

Councils therefore must consider any requests received by employees to work from home. There are many benefits for both councils and employees in implementing working from home arrangements, however, where councils wish to refuse such requests they must carefully consider whether there are any ‘reasonable grounds’ for doing so. The Queensland Industrial Relations Commission has jurisdiction to hear disputes regarding requests for flexible working arrangements. 

The COVID-19 pandemic has undoubtedly changed the world, including in terms of the method and  place in which we can work from. It may be that the traditional office environment that we are accustomed to working in may need to be revisited, perhaps in part at least, with consideration given to embracing a more virtual workplace where people are linked by technology as opposed to physical proximity.   

If you would like to discuss anything legal or workforce related contact Troy Wild on 0437 437 692 or via email twild@wearepeak.com.au.