Updated: Jun 2, 2022
After two and a bit years of working from home as a response to the Covid-19 pandemic, some businesses are now facing the question of whether to have their staff continue to work from home or to return to their office.
Working from home became a valuable tool to keep people employed and business functioning during Covid-19 lockdowns. However, this approach did decimate CBDs as cafes, bars, and retail outlets who traditionally relied upon local office workers suddenly found they were barren of customers.
This had drastic implications for the hospitality and retail sector and while some adapted by providing click and collect, this did not fully replace the pre-pandemic level of customers they had enjoyed.
Now that New Zealand has been back in a more relaxed Orange Alert Level, businesses have been calling upon their staff to return, at least part-time if not full-time, to the company office. There are good reasons for making this call, as it brings people back into the CBD, which in turn brings customers back to the cafes, bars, and retail outlets. However, equally there are challenges in bringing people back. These include, but are not limited to, increased carbon emissions as people return to driving to work, transport bottlenecks, fear of transmission of covid as people turn to public transport. Also fear of transmission of covid, and other illnesses, as people return to working in close quarters.
In the oversees news this week Elon Musk is alleged to have emailed that "remote work is no longer acceptable" and workers must come back to the office or be terminated (note in NZ termination must be justified and follow due process).
This alleged view on remote work is extreme, and there are likely to be employers in New Zealand who are thinking the same as Elon Musk. However, I caution against taking a rash approach.
In New Zealand employers, and employees, must deal with each other in good faith. Our employment agreements, particularly individual agreements, must indicate where the employee is to perform their work. Neither party can unilaterally alter the terms of the employment agreement. This means that if there is to be a change, including where the employee is to perform their work, this must be mutually agreed.
During the pandemic, employers were expected to seek agreement to changes implemented to terms and conditions that needed to be altered to allow for different working arrangements. The most common conditions that were altered were likely those of hours of work and/or rate of pay. Where employees were asked to work from home, this should have been documented as a variation as well, though it is possible that in some cases this was overlooked.
Now that New Zealand is returning to a "new normal", in good faith agreement should be reached on what this means in respect to where work is done. The employer may rightly expect their staff to return to their normal place of work - the office. However, employers need to be aware that their employees may request flexible working arrangements under Part 6AA of the Employment Relations Act 2000. Such a request may include where work is to be performed. Employers must deal with such a request within ONE MONTH of receiving the request and may refuse the request only if it cannot be accommodated on certain grounds. Those grounds for refusal are set out in s.69AAF of the Employment Relations Act.
In New Zealand, taking the alleged Elon Musk stance on where work has to be performed will not be compatible with our good faith requirements. Employers need to look at the benefits of enabling, where practicable, employees to have some time working from home. These are both social, economic, and climate related benefits to both parties.
Where some form of working from home arrangement can be accommodated, Employers need to ensure that the employee can give assurance that health and safety considerations are met. Be clear on the employee being expected to attend staff meetings and whether this is by Teams/ZOOM or in-person. Consider tools and equipment and security of information requirements. For example, can the employee provide a secure work environment in their home that is separate from household living areas? How do you ensure work is uploaded to the company servers? How do you ensure software and security patches are regularly applied to computer equipment?
Whatever accommodation you are able to provide for, one final bit of advice is that employers need to treat each request for flexible working arrangements on its merits, and take into consideration the employee's home environment to ensure it meets any obligations under health and safety and privacy legislation. However, remember that the refusal of any flexible working arrangement request must comply with s69AAF of the Employment Relations Act.
If you need assistance in handling requests for working from home or any other flexible working arrangement, contact us at McKone Consultancy for a no-obligation chat.
Photo Credit: Nick Morrison on unsplash.com