New Ways of Working

Explore and keep track of key legal and compliance considerations for multinational employers as new ways of working become increasingly embedded as the pandemic begins to recede. Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

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Australia

  • at People + Culture Strategies

The government has not introduced any specific laws to regulate remote-working arrangements and these arrangements are subject to the same laws that govern ordinary employment relationships and other types of working relationships (including independent contractor/principal relationships). These obligations do not cease merely because work is performed remotely in an environment that is not directly controlled by the employer.

Safe Work Australia, which is responsible for developing national policy relating to work health and safety, has published detailed guidelines for remote-working arrangements. These set out in detail what an employer’s duty of care for the health and safety of their workers means in the context of remote-working arrangements, including providing practical advice and guidance as to how employers can identify risks to the mental health of workers at home through to how employers can ensure workers are taking rest and meal break entitlements.

Last updated on 21/09/2021

02. Outline the key data protection risks associated with remote working in your jurisdiction.

02. Outline the key data protection risks associated with remote working in your jurisdiction.

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Australia

  • at People + Culture Strategies

In the context of an employer-controlled workplace, it is generally much easier to control and mitigate risks to an organisation’s confidential and sensitive information. There are physical protections intrinsic to the workplace (including by generally being off-limits to non-staff) and cyber-networks often have institutional protections in place, such as virtual private networks, firewalls, anti-virus software and secure IP addresses.

Other data protections that normally exist in an employer-controlled workplace include:

  • the use of private meeting rooms to conduct meetings and discussions involving sensitive and confidential information;
  • the secure storage of private, confidential and sensitive information (both hardcopy and in electronic form) on employer-controlled premises;
  • restrictions on the use of personal electronic devices in the workplace; and
  • the content of phone calls or video calls, and even information simply displayed in the workplace (including on computer screens), being kept private under the confines of the physical workplace.

However, the risks to data protection can be much harder to mitigate in the remote-working environment. These risks are heightened for several reasons, including that an employer has much less “visibility” over how employees deal with the employer’s (and any client’s) information in the home environment and much less when it comes to others who may be sharing that space. In this context, one obvious risk is the inadvertent and even deliberate sharing of sensitive information with one’s housemates, family members or guests.

Last updated on 21/09/2021

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

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Australia

  • at People + Culture Strategies

As a starting point, it is lawful for Australian employers to monitor staff who are working from home and there are no strict limits prescribed by law on the monitoring of worker activity in the context of remote-working arrangements.

However, this does not mean that employers can monitor employee activity as they please. The mutual duty of trust and confidence that underpins the employment relationship could be breached by inappropriate or overly intrusive monitoring activities.

Employers contemplating carrying out monitoring activities should first review the employee’s individual employment contracts and identify any monitoring or surveillance clause and consider what contractual obligations the employer may have concerning monitoring in the remote-working context, and consult any relevant company policies which might also apply.

Generally speaking, employers should be up-front about how and why they will be monitoring employee activity and any employee information that may be collected by that process. For example, employers should make it clear to employees that monitoring of their work devices, emails and message applications will continue when they are working from home and that the information obtained by the monitoring process could be used in a disciplinary context.

Last updated on 21/09/2021

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

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Australia

  • at People + Culture Strategies

There are no laws requiring employers to pay or reimburse employees for costs associated with remote working such as increased electricity costs and internet costs, although some employers may have a contractual obligation to reimburse employees for these costs.

An “expenses” clause is common in Australian employment contracts and provides that an employer will reimburse an employee for any genuine expense they incur in the proper performance of their duties (and for which they can produce receipts). Depending on how such clauses are drafted, employees may have a contractual right to reimbursement of internet and electricity costs as legitimate work-related expenses in the context of remote-working arrangements.

Last updated on 21/09/2021

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

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Australia

  • at People + Culture Strategies

For many international employers and their workforces, the experience of remote working during the covid-19 pandemic has been positive and will likely become part of the “new normal” in the employment landscape. However, employers are now presented with the challenge of reconciling this with their obligations under laws that regulate employment and the practicalities of managing a remote workforce, and tax issues.

Working hours is a key regulatory issue for employers as remote working can make it difficult for employers to monitor and control when an employee is working, when and if they are taking breaks, and if they are working overtime. In respect of monitoring employee performance and conduct, many employers have legitimate concerns about employees working remotely being less productive and not taking their employment obligations and responsibilities seriously.

We are aware of employers introducing software for employees to record their working time and adopting measures to ensure they have some level of “visibility” over employees who work remotely. For international employers, it is difficult to do this in real-time, although there is now technology available to bridge time differences including software that automatically monitors employee activity, including by periodically taking screenshots of employees’ work computers, tracking keystrokes, mouse movements and logging websites that employees have visited. We have seen several “hours of work clauses” and “availability” provisions in employment agreements that introduce a requirement for an employee to be available and responsive to the employer at times that are outside of the employee’s normal daylight working hours in their country of residence.

However, most Australian-based organisations with international employers are not rolling out monitoring systems with universal effect as regulatory frameworks can differ significantly between jurisdictions and a “one size fits all” approach could be problematic as a monitoring system that is permissible in one country may infringe privacy protections in another (for example, whereas Australia and New Zealand have a more relaxed “principles-based” framework to promote and protect the privacy of individuals, other countries’ constitutions explicitly protect workers’ privacy as an inviolable right).

Last updated on 21/09/2021

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

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Australia

  • at People + Culture Strategies

An employee’s salary and contractual benefits are entitlements that are contractual and employers cannot unilaterally vary such entitlements. Similarly, an employee’s remuneration may reflect the minimum rate of pay provided for in an industrial instrument such as a Modern Award and employers will not be able to reduce the remuneration or benefits without running the risk of undermining the minimum entitlements provided in the instrument.

Employers can consult with staff about a proposal to restructure their hours and pay, but generally, no such changes can be implemented without employees being given an opportunity to consider the proposed changes and agreeing to those changes.

The minimum wage order provides that an employee cannot be paid less than the national minimum wage.

Last updated on 21/09/2021

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

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Australia

  • at People + Culture Strategies

It is our view that in most cases Australian employers will be able to lawfully direct staff to get vaccinated under the rubric of existing health and safety obligations, and we note that several major Australian employers have already implemented mandatory vaccination directives.

Many sectors are subject to public health orders that effectively require employers in those sectors to have mandatory vaccination programmes in place (including the aged-care sector), and these employers have the government’s support for vaccine mandates.

While the government has stopped short of endorsing mandatory vaccinations for employers across other industries, we consider that on balance a direction to staff to get vaccinated will amount to a “reasonable” direction and recommend employers adopt this approach, which is in line with the duty to eliminate (or if that is not possible, minimise) the risk of exposure to covid-19 in the workplace.

Of course, employers should adopt a case-by-case approach when considering whether to enforce a mandatory vaccination policy or directive in respect of an individual worker. We note there may be individuals in a workforce who have a legitimate basis on which to exempt themselves from any requirement to be vaccinated (for example, a worker who has an underlying medical reason for refusing the vaccine or a conscientious objection on religious or cultural grounds), and may be able to claim that they have been discriminated against if they are subjected to any adverse action as a result of refusing to get vaccinated.

Last updated on 21/09/2021

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

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Australia

  • at People + Culture Strategies

Unless a specific public health order allows an employer to impose such a condition on entry to its facilities (and these have been imposed by employers in certain sectors, including the aged-care sector), employers should avoid doing so as this could infringe anti-discrimination laws, and give rise to claims that an employee has suffered an adverse action.

Last updated on 21/09/2021

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

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Australia

  • at People + Culture Strategies

Yes, operators of health, aged and disability care facilities are subject to public health orders which make vaccination against covid-19 a requirement of entry.

Whether an employer would be justified in terminating employment based on an employee’s refusal to be vaccinated will depend on the particular circumstances, and an employer would be required to follow a proper process before making any such decision (including allowing the employee the opportunity to be heard before a decision is made that might affect their employment.

We note the Fair Work Commission, Australia’s employment relations tribunal, has upheld the termination of an aged-care receptionist who refused an influenza vaccination. The decision to terminate the employment was made in the context of a public health order that no one was allowed to enter the facility operated by the employer without an up-to-date influenza vaccination to ensure the safety of its clients. We consider this decision serves as a precedent for those employers who are subject to public health orders concerning covid-19 and faced with employees refusing to receive the covid-19 vaccination.

Last updated on 21/09/2021

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

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Australia

  • at People + Culture Strategies

Employee privacy is generally protected under both international privacy laws and, in most cases, national-level laws that protect against intrusion of individual privacy and regulate the collection, storage and use of personal information.

Australian employers will only be able to collect information about an employee’s vaccination status in very limited circumstances, and generally only if the employee consents and where the collection of that information is necessary to maintain a safe workplace.

Employers in certain sectors, such as health, aged and disability care, may be allowed to collect information about a worker’s vaccination status without consent, as such collection may be required or authorised by law to ensure the safety of vulnerable potential contacts within facilities in those sectors.

Last updated on 21/09/2021

12. What are the key health and safety considerations for employers in respect of remote workers?

12. What are the key health and safety considerations for employers in respect of remote workers?

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Australia

  • at People + Culture Strategies

Employers have an obligation under health and safety legislation to take all reasonable steps to ensure the health and safety of workers. This obligation does not cease where the work is carried out remotely, and in the context of a remote-working arrangement, key considerations for employers may include:

  • whether employees have a safe space in which to work;
  • whether employees have the necessary equipment, including an ergonomic desk and chair; and
  • being aware that employees may face increased pressure on their mental health and wellbeing when working from home for extended periods, and taking appropriate actions which may include:
    • checking in with employees on a semi-regular basis to ensure they do not feel isolated and/or excluded; and
    • reminding employees of what counselling services or other wellbeing programs are available for them to access.

 

Last updated on 21/09/2021

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

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Australia

  • at People + Culture Strategies

Currently, there are no specific laws governing an employer’s obligations in respect of the health and safety of remote workers.

However, Safe Work Australia, which is responsible for developing national policy relating to work health and safety, has published detailed guidelines for remote work. These set out in detail what an employer’s duty of care for the health and safety of their workers means in the context of working from home arrangements, including providing practical advice and guidance as to how employers can identify risks to the mental health of workers at home through to how employers can ensure workers are taking rest and meal breaks entitlements.

While this policy does not create any legal obligations per se, it would be relevant to assessing whether an employer has met its health and safety obligations in respect of employees that may be working remotely.

Last updated on 21/09/2021

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

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Australia

  • at People + Culture Strategies

An employer’s duty of care for the health and safety of workers at the workplace will not differ between any category of worker, be they based primarily at the employer’s work premises, at home or anywhere else the worker performs work. In other words, every employer has a basic obligation to ensure the safety of the workplace, and this is not limited to the employer’s office or other employer-controlled premises.

However, the particular environment where work is performed will be relevant to how an employer goes about meeting their obligations in respect of that worker.

Last updated on 21/09/2021

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

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Australia

  • at People + Culture Strategies

Organisations must minimise any risks to workers’ mental health arising from work as far as is reasonably practicable, and this includes where an organisation’s workers are working remotely, including from home.

We note that workers also have a duty of care for their own health and safety, including while working from home, and this requires that a worker follows any reasonable policies or directions the employer gives them that pertain to worker health and safety.

Last updated on 21/09/2021

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

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Australia

  • at People + Culture Strategies

Employers are entitled to consider ways their business can be restructured to maximise efficiency, including where this may involve redundancies and changes to how remuneration is structured. This basic right has not changed during the pandemic, and for many Australian employers impacted by covid-19 it has been necessary to consider making such changes to their business to ensure they have the most optimal structure in place to manage the impacts of covid-19 and are best placed to meet the changed economic environment.

However, the pandemic has not seen any “relaxing” of the rules that govern how an employer must go about introducing changes that affect employees. In relation to redundancies, employers must have a genuine business case and are required to consult with employees before making any decision. In relation to reducing employee wages and salaries, employers will still generally need to obtain an employee’s consent before making such changes in the normal manner.

Last updated on 21/09/2021

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

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Australia

  • at People + Culture Strategies

Some major unions in Australia have sought protections for remote workers, by promoting a “working from home charter” designed to ensure that the rights and benefits of those working from home are not less favourable than what they were before their moving to home-based work, and that working from home should not be grounds for discrimination.

Last updated on 21/09/2021

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

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Australia

  • at People + Culture Strategies

Whether an employer has an obligation to consult with or involve a union when introducing remote-working arrangements, and the extent of any influence the union can wield to determine how the remote-working arrangement will be implemented and managed, will depend on the terms of any agreement between the employer and the union.

It is our understanding that some Australian unions are looking to negotiate specific policies with employers to provide mechanisms and practices designed to support employees and employers to facilitate remote-working arrangements.

Last updated on 21/09/2021