We’re in the midst of a major cultural shift to working from home. Tech companies like Twitter and Square are giving their employees the options to work from home permanently and many industries are being forced to adapt. 

Working from home can be a great option to extend to your employees (if you haven’t already). It has even been proven that there is a correlation between flexible working arrangements, improved productivity and profit generation.

While there is a lot of cool productivity and collaboration software you can use to support your employees when they’re working from home, it’s also important to make sure you have the right legal setup. 

As an employer, it is important to know that wherever your employees are (whether it be working from home or the office), you still have the responsibility to make sure they are healthy, safe and fit for work. This is not only for the employee themselves: health and safety rules also apply to those affected by their working at home. 

In this article, we’ll run through the key legal issues you need to be aware of when your employees are working from home. 

Safety And Equipment 

Generally speaking, before you instate a work from home arrangement, an employer should make sure that their employees’ home work areas meet WHS standards. 

This could involve a safety assessment of their work area before they work from home. 

Depending on the nature of their work, it is also important to make sure your employees are appropriately set up. This means making sure that they have the technological capabilities and  equipment necessary to complete their tasks. 

In fact, employers providing their employees with the tools to carry out their work is one of the considerations Fair Work takes into account when distinguishing between employees and contractors. This could include things such as computers, phones, internet access, software and monitors. 

Before working from home arrangements begin, you should have these sorts of discussions with your employee. However, if you’ve had to make a quick transition to remote working, your business may not have had the chance to do this. In this case, if your employee has to supply any of their own equipment to carry out their work, there may be tax implications (more on that below!).  

Who Can Work From Home?

Having a flexible work environment can improve your business in a number of ways. It is a great way to retain talent and is found to boost employee well-being and happiness. 

The Workplace Gender Equality Agency found that, in 2018, over 70% of businesses in the Australian private sector had implemented flexible working arrangements and policies. 

When you’re proposing a work from home arrangement or moving your employees to remote work, it is important to consult their enterprise agreement, Modern Award or common-law employment contract to check that employees can actually work from home. 

Working From Home Under An Enterprise Agreement

Employees under an enterprise agreement generally have broad entitlements regarding flexible working arrangements. 

While each enterprise agreement differs in its terms and entitlements, this right to request flexible working arrangements usually includes an employee’s right to alter their hours, pattern and location of work. 

It is important to note that, as an employer, you will have to consult your employee before making a decision to accept or reject their request to work alterations. 

Depending on the terms of the enterprise agreement, employees may need to put any requests and changes in writing. 

Modern Awards And Working From Home

If the employee is covered under a Modern Award, the National Employment Standards generally provide them with a right to request flexible working under specific circumstances, which you can see here

As an employer, you are entitled to refuse a request for a flexible work arrangement if it is reasonable for your business to do so. 

While these are legal entitlements for certain categories of people under the Fair Work Act, many employers choose to make working from home an option available to all employees.

What Legal Agreements Do I Need When Employees Are Working From Home? 

As a business owner, if you’re moving to a flexible workplace and allowing your employees to work from home, it is important to reflect this in writing. 

There are many options you can instate to make both you and your employees’ obligations clear. This will be useful to avoid conflicts and misunderstandings down the track. 

A comprehensive Work From Home Policy is a particularly good way of maintaining home office compliance. 

This policy can include an annual examination of their office space, where employees can use a Display Screen Equipment (DSE) checklist to ensure their workstation is sound. The policy should also mandate that employees report any health and safety concerns if they arise during the course of home working. 

Do I Need To Make Any Changes To My Existing Employment Agreements?  

When working from home, it is important to make sure that you and your employees are acting in good faith regarding their working arrangements.

If you do not have employment agreements with your employees, now is the time to make sure you get one in place. This will ensure that both parties are aware of their rights and obligations.

If you have existing employment agreements in place, it is important that any changes to the employees job description, rate of pay or hours of work are reflected in writing. 

Individual Flexibility Arrangements 

In order to cater for the needs of your employees when they’re working from home, such as looking after their children or other responsibilities, you could also have in place an Individual Flexibility Agreement (IFA). 

IFAs allow for flexibility and changes to working arrangements. This means, if an employee is restricted from working certain hours, IFAs may allow them some flexibility – given that minimum entitlements and protections are still provided. 

Flexibility terms are included in modern awards and enterprise agreements to give employees more flexibility. 

IFAs are helpful in looking after your employees in times where they need support. It is important to note, though, that employees covered by IFAs should be in a better position overall compared to their modern award or enterprise agreement.  

How Can I Make Sure My Confidential Information Is Protected?

Encryption 

It is good practice to ensure that any confidential information is encrypted and as secure as possible, especially if your employee is working from home in the presence of other people (like a partner or housemates). 

It can also be a good idea to set up your employee with adequate safety measures to log on privately and access two factor authentication. This will ensure that if their device ends up in the wrong hands, your business’ data will be inaccessible. 

Information Security Policies

If your business deals with sensitive data, having an information security policy may also be useful. 

These policies ensure that all users within the business’ domain are bound to abide by rules regarding the security of data. This can cover software, hardware and information access, data or access control. 

In some cases, if the information includes extremely sensitive and private client information, then your client’s service agreement might mandate that clients sign waivers to allow companies to work remotely. 

Other Things To Consider 

While the legal considerations of allowing employees to work from home are important, there are also a number of other things to think about. These include: 

  • Work/life Balance: Here are some tips to maintain a work/life balance for your employees! Having a work/life balance is crucial as it not only impacts the quality of work, but also reduces staff turnover.
  • Insurance Policy: While employees are working from home, employers are still responsible for any injury that occurs during the course of their work. It is important to make sure that insurance policies are up to date for businesses.
  • Tax Considerations: The ATO has introduced a new working-from-home tax shortcut. They have implemented a simplified method of calculating additional expenses incurred while working from home.
  • Collaboration and Communication: Managing a remote workforce can be a big challenge for businesses. To combat this, there are some useful collaboration tools such as Monday, Asana or Slack, to name a few. 

Promoting Mental Health Awareness In The Workplace

Promoting mental health in your business doesn’t need to be complicated. Even talking about it and increasing awareness can help to reduce any stigma associated with mental illnesses and mental health conditions in your workplace.

It is also a good idea to involve your employees when implementing initiatives and measures to promote mental health in the workplace. Including your employees in the conversation makes sure that you are introducing strategies that are meaningful to them and will ultimately have the maximum positive impact. 

Below are some ideas to help get you started:

Schedule Regular Catch-Ups

Regular catch-ups with your team can be an extremely useful way to build relationships and maintain a sense of connection, particularly if you are all working remotely or from home. These sessions can offer your employees an opportunity to debrief if they have had a difficult week at work, or simply act as a means to hang out with each other.

Look Out For Warning Signs

If you have noticed any changes in demeanour with an employee, it may help to provide an indicator as to how they are going. While it may currently be tricky to gauge mood based on body language if your team is working from home, changes in productivity and attitudes towards work may be a sign that they may be struggling. 

Check In On Employees You Are Concerned About

If you’ve noticed that one of your employees might need support, it’s important to follow up. Organise to speak with them one-on-one and let them know that you are there to help. For tips on starting the conversation, check out HeadsUp.

Be responsive if your employee tells you that they are struggling. Where possible, explore options with them to provide appropriate support. For example, approving leave requests, reducing their workload or extending deadlines to relieve any immediate pressure they may be under.

As a small business owner, you undoubtedly have a lot on your plate. When you’re looking after your business and employees, it can be easy to forget to look after yourself. So while it may be tempting to direct all of your time and attention toward running your business,  it is crucial that you take some time to take care of yourself too.

Need Help?

While working from home may be a new area to navigate, particularly for more traditional industries, it is important to make sure that you’re still meeting your legal obligations as an employer. 

If you’re looking for help to ensure your policies and agreements are up to date, or even understanding your employees’ Modern Awards, feel free to get in touch! Our friendly team can be reached for a free consultation on 1800 730 617 or at team@sprintlaw.com.au.

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