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Directing employees to return to work

One high profile Australian employer is facing a legal challenge after directing employees to return to work in the office.

According to a recent article in the Financial Review, the Finance Sector Union has filed a dispute with the Fair Work Commission over the Commonwealth Bank’s edict for more than 20,000 staff to work at least half their hours at the office instead of working from home.

CBA employees are complaining not working from home will force them to spend more money on commuting and childcare and will interfere with family life. They say they will also lose two to three hours a day travelling to and from work.

In response, a CBA spokesperson said more than 15,000 of the bank’s 40,000 staff had continued to work from bank branches throughout the country since March 2022. “We believe that connection, innovation and the ability to build and strengthen relationships is absolutely fundamental to how we continue to work,” the spokesperson said of the bank’s hybrid approach.

There’s valid arguments both for and against working from home arrangements, especially after what we’ve all gone through with the COVID pandemic. Simply for the sake of this blog, let’s assume an employer wishes to take a hard line stance on this one: can an employer lawfully direct an employee to return from a temporary working from home arrangement back to the office?

Short answer: yes. But how effectively you manage this situation (and “effectively” in this case means having your people understand their obligations as your employees before electing to take some type of resistance action) is going to be influenced by what documents you hold confirming your right to direct the employee to work from your office, what you may have agreed with the employee when they commenced working from home and what actions you take around consulting with employees who may be resisting a return.

Most well-drafted employment agreements provide that workers must work from the employer’s place of business (or another/other location/s directed by the employer) as well as following all lawful and reasonable directions of their employer.

In our opinion, issuing a blanket “you must return to work” decree is possibly not the smartest way to address this matter. We’d suggest attempting to work with the individual in a collaborative manner to identify mutually agreeable options…at least in the initial stages. What are their specific concerns about returning? Their health and safety? Carer’s responsibilities? Commute times? Something else? Holding such discussions demonstrates you have been reasonable in considering the person’s individual circumstances before coming to a final decision on your course of action. It might be a suitable compromise be as simple as trialing returning to work on a basis of less than 5 days per week and reviewing the arrangement in a few months.

Assuming you have reasonably addressed any specific concerns the employee might have about returning, that you have valid reasons for the person to return and you have a contractual right, you can confidently request the employee to return to work.

Here’s the thing: issuing any direction to employers in relation to their employment will always have a better chance of success when you know your rights as an employer, consider individual worker circumstances, clearly communicate your reasons for your instruction and have solid backup content in your employment documents. Doesn’t take a rocket scientist to conclude your documents are most effective when they are tailored to your business, people and operating environment.

The online world is full of free employment agreement templates, HR policies and general advice and for a small business owner, it’s often tempting to copy and paste content from these into your documents. But oftentimes, these templates are from employers in operating in sectors different from yours, multinationals or public sector employers and as such, contain content not applicable to your business.

Simplest way to find out what content should be included in your Contracts of Employment or what policies you should have in place to make your life easier? Simple: find someone who does know.

Bottom line? Your job is to run your business. At Bare Bones Consulting, we consider it our job to successfully align your people side of things so you can focus on hitting your business targets. And get some work/life balance. Have we been successful so far? Check out our Google reviews or some case studies here.

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