Returning to Work After COVID-19 Lockdown Q&As

The following Q&A is for employees returning to on-site work after COVID-19 lockdown restrictions. This information is accurate as at 1 October 2021. Updates will be provided as further information becomes available.

Disclaimer

This Q&A contains information of a general nature only and is not a substitute for professional legal advice. You should obtain legal advice from a lawyer about your particular situation before acting on any of the following information. This Q&A is designed for Victorian and national system employees in Tasmania and Queensland only. If you are not a Victorian employee or a Queensland or Tasmanian national system employee, you should obtain specialist legal advice about your case as soon as possible.

For more information on what is most appropriate in your situation, contact JobWatch’s Telephone Information Service on 1800 331 617 (Regional VIC, QLD, TAS) or 03 9662 1933 (Melbourne Metro).

My employer wants all the employees to resume working from our usual workplace location but I would prefer to keep working from home while there is still a risk of contracting COVID-19. Can I be forced to stop working from home and return to my usual workplace?

Employees must obey the lawful and reasonable directions of their employers. Failing to comply with a lawful and reasonable direction may justify dismissal. In each situation, you will need to consider whether your employer’s particular direction is both lawful and reasonable in the circumstances.

If the government restrictions in your state or territory have been eased, allowing for your return to your usual workplace, and your employer is asking you to return to your usual work location according to your existing employment contract (written or verbal) then you should obey the direction, unless you wish to raise one or more of the following:

• You have concerns based on health and safety (contact your state or federal health and safety regulator for more information)
• You need reasonable adjustments (working from home) because of a permanent or temporary disability/impairment (contact your state or federal anti-discrimination agency for more information)
• You need to work from home because you are a parent or carer (contact your state or federal anti-discrimination agency for more information)
• You fall into one of the categories of employees entitled to request flexible working arrangements (including working from home) under the Fair Work Act 2009, namely:
  • you are the parent, or you have responsibility for the care, of a child who is of school age or younger;
  • you are a carer (within the meaning of the Carer Recognition Act 2010);
  • you have a disability;
  • you are 55 or older;
  • you are experiencing violence from a member of your family;
  • you provide care or support to a member of your immediate family, or a member of your household, who requires care or support because the member is experiencing violence from the member’s family.

To be eligible to make a request for flexible working arrangements under the Fair Work Act, you must have completed at least 12 months of continuous service with your employer. If you are a casual employee, you must have worked on a regular and systematic basis and you must have a reasonable expectation of ongoing employment. Your employer may only refuse the request on reasonable business grounds.

Under the Fair Work Act, the employer must respond in writing to a request for flexible working arrangements within 21 days. If the employer refuses the request, the employer must include reasons for the refusal. The employer cannot refuse unless there are reasonable business grounds. If there is a dispute about whether there are reasonable business grounds for the refusal, that can be lodged with the Fair Work Commission. Employees can also report alleged breaches of these provisions to the Fair Work Ombudsman.

What if I or a member of my household is immuno-compromised?

If you would prefer to avoid your usual workplace because you have reduced immunity or want to protect someone in your household, try to negotiate with your employer to come to an agreement about where you should work. If you think that you can do your job from home, consider the following:

• Making a request for reasonable adjustments for your disability (contact your state or federal anti-discrimination agency for more information)
• Making a request for flexible working arrangements under the Fair Work Act 2009. Note that the definition of carer in this context is a person who provides personal care, support and assistance to another individual who needs it because that other individual:
  • has a disability; or
  • has a medical condition (including a terminal or chronic illness); or
  • has a mental illness; or
  • is frail and aged.

A person is not a carer merely because he or she is the relative or guardian of an individual or lives with an individual who requires care.

What if I am a working parent with school-aged or young children and I need to keep working from home while schools and/or childcares are closed?

If you think that you can do your job from home until your children return to school and/or childcare, consider the following:

• Making a request to work from home in accordance with anti-discrimination laws (contact your state or federal anti-discrimination agency for more information)
• Making a request for flexible working arrangements under the Fair Work Act 2009.

If I agree to resume work from my usual workplace, what duties or obligations does my employer have to keep me safe from COVID-19?

Employers have a duty to provide and maintain, so far as is reasonably practicable, a working environment that is safe and without risks to the health of employees. This includes preventing risks to health, including psychological health, and safety associated with potential exposure to COVID-19.

Where a risk to health is identified at a workplace, employers must, so far as is reasonably practicable, eliminate or reduce the risk.

Employers also have a duty to consult with employees and health and safety representatives, so far as is reasonably practicable, on matters related to health or safety that directly affect, or are likely to directly affect them. This includes consulting with you on decisions about how to control risks associated with COVID-19 in the workplace. The type of control measures required will depend on the level of risk as well as the availability and suitability of controls for each workplace.

For more information contact your state or federal work health and safety regulator.

I rely on public transport to get to/from my usual workplace, but with the current pandemic I am concerned about using public transport.

Public transport operators across Australia are expected to work closely with the relevant government agencies to ensure that all necessary precautions are taken in relation to public transport. For more information contact the relevant Public Transport Authority for your state.

If you remain concerned about getting to/from work by public transport, try discussing your concerns with your employer. Contact JobWatch’s Telephone Information Service for more information.

For more information on what is most appropriate in your situation, contact JobWatch’s Telephone Information Service on 1800 331 617 (Regional VIC, QLD, TAS) or 03 9662 1933 (Melbourne Metro).