Knowing your rights in the workplace as restrictions ease

*(Photo: Tara Hayes)

As COVID-19 restrictions continue to ease across NSW, many employees are finding themselves asked to return to work. In some industries, employees can continue to work from home. In others, many do not have a choice. Tara Hayes spoke to UTS Professor of Law Joellen Riley Munton, on how to navigate this space.

More employees are heading back to work, but some are concerned it may be too early.

Nina*, who asked that her surname be omitted for privacy reasons, is among those who believes now is not the time.

A case manager for income protection, she said the company she works for welcomed the first of three waves of employees back to the office on June 1, however she indicated she did not want to be a part of this group.

“I’m really looking forward to going back to the office, but I’m just concerned that they’re rushing into things,” she said.

“I like that face-to-face interaction as opposed to online, but I don’t feel comfortable doing so until we’ve got clearer updates on COVID-19 and how many people are still being infected.”

Using “extremely crowded” trains to get to work in the city also adds to her concerns.

Nina* said she is enjoying the convenience and flexibility of work-from-home arrangements. She has been provided with a laptop and ergonomic chair by her company and when she is ready to return, would like a mix of working from the office and home.

(Photo: Supplied)

UTS Professor of Law Joellen Riley Munton, said it is likely that working from home will become “much more normalised in the future”.

“We’ve had the advantage of a fairly rushed experiment but it’s an experiment that in some industries has worked quite well,” she said.

“Employers are perhaps now more confident that employees can be quite productive at home and so they may be more willing to continue with that than they would have in the past.”

Professor Munton said she is “confident” that the current Work Health and Safety Act can be adapted to keep up with potential changes, as it is “expressed in very broad, general terms”.

ENSURING HEALTH AND SAFETY IN THE WORKPLACE

Employers, or those deemed to have control of a business, must take all “reasonably practicable” steps to ensure both health and safety in the workplace and employees must reasonably cooperate with procedures put in place.

Professor Munton said offices may implement “much more rigorous cleaning protocols” and continue using rotating team rosters, as well as move away from shared furniture and equipment arrangements including hot-desking.

Professor Munton said responsibilities also extend to agreed home workspaces, which may involve employers making an assessment of the workplace and ensuring their workers have safe equipment at home.

This could include workplaces allowing staff to take home ergonomic furniture to avoid risks of repetitive strain injuries.

RESTRICTIONS EASING 

As some COVID-19 restrictions eased on June 1, and a further relaxing of rules on fitness and recreational activities is expected on June 13, more businesses are reopening or expanding their operations.

The 4 square metre rule however, still applies.

Nina* is unsure when she and the rest of her co-workers will return to the office, with an assessment being carried out on the first wave of employees before further decisions are made.

But not every industry is able to operate with their employees at home.

26-year-old casual retail worker Katrina*, who also asked for her surname to be omitted, went back to work in April after her workplace was closed for a short period of time.

“When they said we would be opening again, I was very iffy about it because I assumed we would be closed for a couple of months and when I did go back I did feel pretty uncomfortable,” she said.

“The only reason I decided to keep on working – I do work only two to three days a week – is to be able to pay rent and have some extra money.”

Still a student, she said that although her company has “been great” throughout this period, it is the busy-ness of the shopping centre she works in and others not adhering to the rules, that concerns her.

The NSW Government has released industry specific guidelines to help workplaces stay safe.

REFUSING TO RETURN TO WORK

Employees refusing to return to work could be asked to use up their leave entitlements and following this period, may take leave without pay until they are happy to return, Professor Munton said.

If an employer takes the refusal to come back to work as grounds for a dismissal, a notice period may need to be paid.

The question comes down to whether unwillingness to come back to work due to concerns over safety is “in fact a repudiation of your employment contract or not,” Professor Munton said.

Situations will need to be looked at on a case-by-case basis with a claim of unfair dismissal in some situations being hard to satisfy.

CONTRACTING COVID-19

If an employer has done all that is reasonably practical to keep the workplace safe, there is doubt over whether a negligence claim would stand if a worker was to contract COVID-19, Professor Munton said.

It would be quite difficult to prove you caught coronavirus from your workplace rather than while doing other tasks including travelling on public transport or getting groceries.

(Photo: Tara Hayes)

It may be reasonable for employers to ask their workers to have temperature checks or tests before coming into work.

The NSW Government is expected to monitor the progress of new easing of the rules before moving to the next step.

More information can be found on the Fair Work Ombudsman website.

— Tara Hayes @hayesstara