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Battle looms over working from home

Peter Switzer
12 October 2021

Sydney has cheered the arrival of ‘freedom day’ but there is a freedom of information problem created by both a lack of research by normal people and a failure of government to understand their customers!

If you’re a boss trying to work out whether you can get your staff back to the office, the bottom line answer is it will be up to them!

Hitting the 80% double-vaccinated benchmark brought new rules for the state and I’ve been asked by many employers what they can do to get their staff back to the workplace.

In New York in May global giant finance operation, Goldman Sachs ordered their employees back to work.

CEO David Solomon called the work-from-home trend an “aberration” but the Yanks can be very gung-ho.

“I do think for a business like ours, which is an innovative, collaborative apprenticeship culture, this is not ideal for us. And it’s not a new normal.”

But what worked on Wall Street didn’t work in London. A month after the US ‘back to the office’ call, a BBC headline showed what the new post-Covid reality had become in the UK: “Goldman Sachs delays return to office for workers.”

Right now in NSW, bosses aren’t sure if they can get their staff to return to the office. Certainly, no one is ‘ordering’ employees out of their Coronavirus cocoons. It has to be understood that some employees love their new arrangement, while others hate it. And then there are those who now hanker for a hybrid model.

This is set to be the new industrial relations battleground for lots of workplaces in 2022, when employers, who really think their businesses are suffering productivity issues for a myriad of reasons, will be trying hard to restate the old normal.

But as the old song goes: “How ya gonna keep ‘em down on the farm after they’ve seen Paris?”

And clearly, the push to work from home will be stronger in NSW and Victoria where the lockdowns have really given employees a huge taste of working from home.

For bosses in NSW hoping to coax their staff back into the office, my research tells me:

• You can work anywhere in NSW;

• If a workplace can open, it may need to follow the rules for COVID-19 Safe Check in;

• If an employee is not fully vaccinated, they must work from home;

• If an employee is fully vaccinated, an employer must allow you to work from home if it is reasonably practicable to do so; and

• If it’s not reasonably practicable for you to work from home, you can go to work.

But note the wording — “…you can go to work.”

There is absolutely no scope for an employer to instruct an employee to come to work, even if the work can’t be done at home. However, this raises the question: will redundancies surge if there are employees who won’t take the ‘risk’ to go back to work when the boss wants and needs them in to make their business work?

And the next thorny issue for a boss to endure is: can you give an unvaccinated employee the ultimatum to get jabbed or lose their job?

This is what coronavirus.fairwork.gov.au says on the matter:

Employers can only require their employees to be vaccinated where:

1. A specific law (such as a state or territory public health order) requires an employee to be vaccinated (see COVID-19 vaccinations: legislation and public health orders).

2. The requirement is permitted by an enterprise agreement, other registered agreement or employment contract (see Agreements or contracts relating to vaccinations), or

3. It would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis (see Lawful and reasonable directions to get vaccinated).

One or more of these circumstances can apply when an employer is requiring an employee to be vaccinated. For example, an employer could rely on a state public health order that requires their employee to be vaccinated to give the employee a lawful and reasonable direction not to work unless they are vaccinated.  

This is classic “Yes Minister” stuff that shows that governments are running scared on the subject. The bottom line is that employees currently have a lot of leverage when it comes to where they work and if they’re happy about that, then this is the pandemic they had to have.

If you’re a boss worried about your productivity, profitability and businesses survival, given you might have big rents (which will go back to normal in 2022 if they haven’t already), you might have to develop a new employment strategy.

For some employees now barnacled to their home office, they might find that their job goes to a cheaper stay-at-home worker or someone happy to go to work. And then there are foreign workers in countries where the hourly wage rate might look appealing to local employers who are less profitable as a consequence of this life- and work-changing virus!

Freedom day looks like it could create a whole pile of new freedoms to act that might rock a lot of employers and employees in 2022.


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