Working from home is a type of flexible working arrangement which is provided for under the National Employment Standards. While it is typically people who just need a bit of extra flexibility, such as parents of young children, who take up working from home arrangements, the COVID-19 (or coronavirus) pandemic has caused an unprecedented demand for employees to work remotely where practicable.

It is important in these circumstances that employees and employers are aware of their obligations and rights in relation to working from home.

Who can be required to work from home?

Some Enterprise Agreements and employment contracts contain provisions about the circumstances in which employees may request or be required to work from home. Where these provisions exist, they should be followed to the extent that is reasonable in light of the current unique circumstances. Workplaces should also have policies and procedures in relation to working from home.

Where there are no provisions in an employee's contract or the relevant Enterprise Agreement, a working from home arrangement can be negotiated between the employee and their employer.

In the context of the current coronavirus pandemic, negotiating to work from home may be particularly relevant to employees in self-isolation and employees whose workplaces are in lockdown.

Employees who are required to self-isolate

Some employees, such as people returning from overseas or interstate travel, are now required by the Commonwealth and SA Governments to self-isolate. This necessarily means that they must remain in their homes and must not attend their workplaces.

Employment legislation does not currently deal with a situation in which employees are required to self-isolate. Therefore, best practice for both employees and employers will generally be to reach an agreement as to working from home arrangements (where appropriate), keeping in mind the relevant legal principles set out below.

If it is impossible, impractical or unsafe for an employee to perform their work at home, an employer is unlikely to accommodate a working from home arrangement. In this case, the employee may be entitled to access their accrued annual leave or long service leave. If the employee has exhausted their accrued leave, they may be entitled to unpaid leave. Employees should discuss this with their employers.

For more information about coronavirus and workplace rights, we refer you to this article.

Employees who are unwell

Employees who are unwell should act in accordance with the most up-to-date directions issued by the Commonwealth and SA Governments and should not attend their workplace. Instead, they should take personal leave or sick leave, or if necessary unpaid leave. They should not – and should not be required to – work from home.

Some employees may be entitled to paid special leave. They should discuss this with their employer.

Businesses in lockdown

A business may shut down if directed by the Commonwealth or SA Government, or if it's operational requirements are significantly affected by a factor outside of its control, such as the coronavirus. Many businesses would also need to shut down if SA was subjected to a more stringent lockdown.

If an employer's business is shut down, the employer may, by providing notice, direct those employees who have accrued a sufficient amount of paid leave to take some of that leave. What constitutes a 'sufficient amount' of leave and how much notice is required should be determined by reference to the relevant Award or Agreement, however best practice is for employers and employees to be as flexible as possible and to come to an agreement. The guiding principal is what would be considered reasonable for the particular business given the current financial strain caused by the pandemic.

While the business is shut down, employees may be 'stood down'. This means that they continue to be employed by the employer, but they are not paid and do not perform any work for a period of time. Employees who are 'stood down' continue to accrue their entitlements.

Other employees may be able to work from home if there is continuing work to be done notwithstanding the shutdown.

Does working from home affect pay?

If an employee is required to work from home, and performs the same or equivalent work from home as they would in their workplace, they should be paid their full ordinary rate of pay.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.