“Updated guidance for the public service will make clear that working from home is not an entitlement and must be agreed and monitored”.
The focus in some recent media articles is that this move is intended to return workers to the CBD, bringing a much-needed boost to the hospitality industry.
However, the minister also stated, there are good reasons why employees have traditionally been physically brought together for work. It allows face-to-face conversation, the sharing of skills and experience and relationship building. It supports younger and newer employees to observe, learn from and form connections with their more experienced colleagues.
A number of larger employers have already started such initiatives. These same reasons are consistently given. Workplace culture and workplace connectivity have suffered with more people working from home.
On the other hand, flexible working is increasingly recognised as a valid way to attract and retain employees across all age groups and genders. It has been found to drive employee engagement and productivity, as well as boosting employee wellbeing and happiness.
Flexible working actually covers a wide range of arrangements, including working different hours, starting and finishing outside traditional work hours, and working remotely or from home. Hybrid working is a type of flexible work which combines working both in the workplace and remotely.
While flexible working arrangements have increased since Covid, the current economic climate allows employers to be more direct about returning employees to their physical workplace. Along with culture considerations, managing remote workers is not without its difficulties. As the employer has less oversight, regular check-ins are necessary to manage work flow and communication. As many of us experienced during Covid, supervising remote workers is also more onerous than if they are working together in one place. Certain industries also need to carefully consider issues around privacy and confidentiality.
And then there are the health and safety considerations. It is necessary to consider all risks in the home environment, both physical and emotional. This includes ensuring workers aren’t working excessive hours, and are taking their necessary breaks. Consideration also needs to be given to who else may impact the home working environment such as children and partners.
The duty to take reasonable steps to maintain a safe workplace (whether that is at the physical place of work, or at some other remote location) is a term of any employment agreement. An employer is required to protect employees against foreseeable risk of harm and an employer must take such action that is proportionate to the known risk. Home office safety checks have become commonplace. However, that is not the end of the matter. There has to be ongoing monitoring of the home workplace environment for as long as work occurs there.
Consideration also needs to be given to psychosocial risks at work. WorkSafe’s good-practice guidelines emphasise the need to take a long-term view of productivity and to increase workers’ ability to make their own decisions about their work. WorkSafe encourages employers to focus on retaining staff and promoting work-life balance.
Of course, psychosocial risks exist both in the physical workplace and in remote working locations. There is no “one size fits all” response to psychosocial risk. That is why an inflexible requirement for all workers to return to the physical workplace may be fraught.
The government expects public service chief executives to issue revised guidance about working-from-home arrangements. These guidelines enforce expectations that:
Working-from-home arrangements are not an entitlement and should be by agreement between the employee and employer.
Working-from-home arrangements should only be agreed to where they will not compromise the performance of employees and agency objectives.
Agencies must actively monitor the prevalence and impact of working-from-home agreements, and be able to regularly report to the Public Service Commission about the number and nature of the agreements they have in place.
Of course, flexible working arrangements didn’t just begin with Covid. Part 6AA of the Employment Relations Act has allowed employees to request flexible working arrangements since 2008. Employers may only refuse a request if it cannot be accommodated on certain grounds. Those grounds include detrimental impact on quality, detrimental impact on performance and detrimental effects on ability to meet customer demand. These are consistent with the government’s guidelines.
In New Zealand as opposed to the UK, for example, an employee can only challenge their employer’s non-compliance with flexible working requirements. There is no right of challenge to the employer’s substantive reasons for refusing a request for flexible working arrangements.
Humans are of course social creatures. Our wellbeing is often enhanced by social interaction both at work and outside work. Society has an obligation to support all its members, including CBD retailers, restaurants and cafes. Vibrant CBDs nourish those who inhabit them. However, there also needs to be a range of working options. Enabling the sharing of skills, experience and maintaining a healthy workplace culture also need to be catered for.
Post Covid, a number of workers re-evaluated their priorities. Work-life balance became paramount. A number of industries experienced and scrambled to respond to depleted workforces. Labour was at a premium. No matter how well intended the Public Service Minister’s initiative may be, I can’t help but think that in the current economic climate increasing rates of unemployment will leave workers with little alternative.
• John Farrow is a partner with Anderson Lloyd specialising in employment law. The opinions expressed in this article are those of the writer and do not purport to be specific legal or professional advice.
