Back to the office? These are your rights as an employee

In most instances, employers can require that you return to the office when COVID restrictions allow.

In most instances, employers can require that you return to the office when COVID restrictions allow. Photo: Getty

As Australia muddles through another wave of the pandemic, employees are reluctant to head back to the office full-time after years of working from home.

Some states are still encouraging people to work from home where possible.

But the promise of no more lockdowns means employers are keen to get workers back into the office – and they could face some resistance.

A study by Boston Consulting Group found that up to 60 per cent of Australian workers want to work remotely for two or three days a week when COVID-19 restrictions allow them to.

So it could be a good time for workers to brush up on their rights.

Your right to choose where you work

University of Sydney Business School employment law expert Giuseppe Carabetta said although employees might question if returning to the workplace is necessary, the decision may be out of their hands.

Fair Work is encouraging bosses to remain flexible about employees working from home, particularly while social distancing and COVID-19 vaccination requirements apply.

But outside of specific government directives, such as lockdowns, employers can require employees to return to the workplace as long as it complies with work health and safety obligations under the Fair Work Act.

And if employees don’t comply with the instruction to return, employers are likely within their legal right to take disciplinary action, including dismissal.

Dr Carabetta said you could have grounds to resist going back to the workplace if you have a reasonable concern that there is a serious risk to your safety.

But whether exposure to COVID-19 gives you the right to refuse going back to the office without facing disciplinary action remains “untested” legally, he said.

“The scope of it hasn’t been tested … it will come down to the nature of the actual job,” he said.

Jewell Hancock Employment Lawyers principal Trent Hancock said his practice has received many inquiries from prospective clients who are reluctant to return to the workplace after working from home successfully throughout the pandemic.

He said although employees don’t have a general right to work from home, they do have a lot of bargaining power.

How to negotiate with your employer

You have a right to make a flexible working arrangement request under the Fair Work Act, but an employer equally has the right to reject the request, Mr Hancock said.

He said with some industries experiencing labour shortages, employees have more bargaining power to negotiate the terms of their contract and from where they work.

But in his experience, there is a reluctance by employers to agree to requests to continue working from home.

Mr Hancock said some enterprise agreements allow employees to request working from home while others contain dispute resolution clauses that enable employees to escalate disputes to the Fair Work Commission.

“[It’s] always worthwhile as an employee to read through [your enterprise] agreement to see if there are some additional rights to work from home, or at least make a request to work from home,” he said.

Dr Carabetta added that “prudent” bosses will try to negotiate with employees rather than take the legal route.

He said if you have concerns about your health and safety in the workplace, you should talk to your employer and organisation’s health and safety representative.

“Have a consultation so that both parties are agreeing to what kind of precautions have been taken, so the employee gets an assurance from the employer, [and] the employer gets input.”

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