Tis the season to be (jolly) flexible

2020 has been an extraordinary year for employers having to navigate several business obstacles, from commercial, market and customer centred interactions to the need to be responsive and flexible with their workforce.

As we approach 2021, it is evident that working from home will likely become a new normal for many.  The pandemic has shown that in many cases, it is not as operationally unreasonable as was once thought. This new normal brings an underlying expectation that employers need to be responsive and accommodating to this work from home demand.

Data (from domestic and international sources) suggests that productivity can benefit from working from home and surveys conducted over the pandemic reveal that only a relatively small percentage of managers believed that work teams were less productive working from home. The majority concluded that productivity was the same or higher. Hence, ‘working from home’ has a growing acceptance in Australia’s employment framework.

The Fair Work Commission’s President, Iain Ross, released a statement which was intended as ‘a starting point for discussions between parties’ on work-from-home arrangements in the COVID-19 era’. The statement identified that most modern Awards did not incorporate working from home or telework provisions and proposed a consultation process for amendments to Awards.  Some of the amendments are to:

  1. allow employees to work from home;
  2. allow employees to work their hours over fewer days;
  3. allow employees to take double leave at half pay.

Some of these proposed amendments are in line with temporary amendments made to some modern awards earlier in the pandemic crisis, and may well become standard features of modern workplaces.

While the thought of employees working from home may seem daunting, not every aspect of it is a potential hurdle. Having employees work from home can lead to reduced overheads, particularly in terms of rental costs. For some, this can be a considerable financial benefit. Leasing agents report that business negotiating a renewal of a lease are sometimes taking 40% – 50% less space than they currently lease.

To meet the flexible, work from home expectation, employers must anticipate and plan for the issues that lie ahead if working from home is to be sustainable.  Some of the key issues to consider and plan for are:

  1. workplace health and safety – and mental health;
  2. potential underpayments;
  3. confidentiality;
  4. protecting personal information; and
  5. supervision.

Workplace Health and Safety

Working from home raises challenges. For example, there is some evidence that health professionals, are seeing a surge in patients with cracked teeth (from stress grinding) and back pain from poor ergonomics. Working from home can be isolating and overwhelming for some, which poses a risk for an increase in stress and anxiety.

Part of managing this means employers must consider:

  1. training sessions on the health and safety challenges of working from home;
  2. regular check ins or regular team check ins;
  3. providing, subsidising, or reimbursing the cost of certain equipment (such as ergonomically safe seating);
  4. fostering a work environment in which employees feel safe in raising concerns about working from home and responding to such concerns; and
  5. risks that are unique to working from home (for example, the threat of domestic violence).


During the COVID-19 lock down, underpayments (emotionally called ‘wage theft’) raised its head as a workplace governance and compliance challenge.

The Fair Work Ombudsman has noted ‘corporate underpayments’ as a priority focus for 2020-21 and even though there may be additional regulator flexibility for some struggling industries, this will not extend for everyone.

Not keeping of proper records will not be an answer. Employers must consider how to track hours of work and implement systems (which may include self-reporting) to enable the accurate recording of time worked, including overtime.


Most confidentiality protocols are designed around employees working from a single place.  Employers need to consider if their confidentiality policies and cybersecurity policies and software/hardware meet the needs of working from home. After all there is commercially sensitive information that must be protected in a world of a dispersed workforce. Employers also need to be mindful not to “cross the line” with invasive digital surveillance technologies that threaten employee privacy.

Protecting personal information

A dispersed workforce raises data security issues, especially for collecting and handling personal information data (sometimes sensitive information) from a remote or home location. Employers that are subject to the Australian Privacy Principles must take such steps to protect personal information from misuse, loss, and unauthorised access.

Employers must implement procedures for managing and guiding employees through the business’ security requirements for handling and storing documentation.


Along with considerations about invasive digital surveillance technologies, employers must reconsider how appropriate performance supervision and training supervision might be undertaken. Much of the passing on of skills from more experienced workers to younger workers happens dynamically when groups of employees work and discuss work in a more direct face-to-face workplace interaction.

Making sure that the experience that comes from more long-term and experienced workers is passed on to new outworkers will require new methods of training and learning and collegial collaboration when workers are working from individual homes.

Communication protocols and collaborative working protocols between teams will require new commitments and determination when people are not together face-to-face with in a single workplace. New ways of being able to pass on the experience of time will have to be planned.

What should employers do?

For each employer, the success or failure of working from home will depend on investing in a framework that supports employee engagement and trust.  Regardless of what is in store for 2021, work flexibility is a long-term planning exercise.

Rather than be swept along with the pressures of working from home without knowing precisely how such schemes should operate, employers need to plan now for working from home arrangements that meet their operational requirements, provide for appropriate governance and maintain productivity.

If you are looking for help to ensure your policies and agreements are up to date, or are unsure how any of the flexibility or working from home requirements might affect your business or what you are required to do, contact us.


If you are unsure about your safety obligations or whether you share a safety obligation with another business, please contact a member of our Employment, Workplace Relations & Safety team.  Never leave safety to chance or good luck.


This information and contents of this publication, current as at the date of publication, is general in nature to offer assistance to Cornwalls’ clients, prospective clients and stakeholders and is for reference purposes only.  It does not constitute legal or financial advice.  If you are concerned about any topic covered, we recommend that you seek your own specific legal and financial advice before taking any action.