Why HR leaders must be mindful of work-from-home legal landscape

The world for HR managers seems to get more complicated by the day. A prolonged global pandemic continues to complicate workplace arrangements which is compounded by database and digital security concerns, industrial relations issues and ongoing contract negotiation where employee demands are growing exponentially. The workplace situation will get only more complicated as remote work becomes the new norm combined with ever-present changing workplace rules and regulations.

“A legal area which will have an impact going forward is workplace flexibility and working from home,” Pooja Kapur, Employment Lawyer at Owen Hodge Lawyers, told HRD. “With the increasing focus on working remotely, we should see a greater focus on enshrining flexible workplace arrangements in employment contracts rather than it being a more fluid, verbal arrangement.”

But Kapur emphasises an even more important point that not all employers are aware of, which is that everyone within an office environment, no matter their status, is covered under the Workplace Health and Safety Act, which affects the structure of contracts.

“Often employers get tripped up these days when it comes to how employment is structured - for example on a contract, casual or permanent basis - and whether they are meeting their obligations within that structure,” Kapur added. “For example, within the last year, changes were made to the Fair Work Act which give certain casual employees the right to be moved to permanent employment. This is a significant change for employers which typically rely on employing casual workers. Without the right legal advice, some employers may find they’re not compliant. Not all employers realise that employees, contractors and subcontractors are all defined as workers under the Work, Health and Safety Act which means employers have the same duty of care in relation to work health and safety regardless of how employment is structured.”

For big recruiters such as Drake International, there are a plethora of issues bubbling underneath the surface that they have to deal with on a daily basis.

“Employers today are facing a range of legal issues beyond those arising from COVID-19, such as the adequacy of workplace safety measures, matters impacting the mental and physical wellbeing of its employees, and, more broadly, compliance and regulatory issues,” Christopher Ouizeman is CEO of recruitment and HR specialists Drake International, said. “This includes complying with modern awards and enterprise agreements, ensuring employees’ rights under the Fair Work Act and other legislation, and properly monitoring for both actual and potential modern slavery practices within its full supply chains.”

It can become a legal nightmare for smaller businesses as they weigh up whether to expand their business or just consolidate with the staff they have seeking ways to even out the workload. But the reality remains that all rules around employee health and safety, awards and workplace conditions must be adhered to at all times.

“Employers can ensure they are properly prepared by constantly reviewing, testing, and, where necessary, updating their practices, procedures, and policies to adapt to an ever-changing legal landscape,” Ouizeman said. “This includes taking proactive measures such as the appointment of committees and taskforces to oversee different risk areas and to regularly meet to determine and implement necessary preparatory measures. There must also be clear and open lines of communication between management and field staff, where the risk of legal problems materialising can be quickly identified, properly understood, and then effectively acted upon at the earliest stage possible.”

Consulting an employment lawyer and ensuring the right contracts are in place can lead to saving significant legal costs down the line. Terminology in contracts has never been more important.

“As always, prevention is better than a cure,” Kapur said. “If you don’t currently work with an employment lawyer, it's a good idea to seek one out. A good first step is to have an employment lawyer conduct an audit of your employment contracts and workplace policies to identify any potential risks and recommend measures to ensure compliance. Employment contract s are extremely important and serve to protect both the employee and employer by setting out the rights and responsibilities of both parties. Having a well-structured written employment contract which is consistent with any applicable awards can protect you against potential litigation and discourage your employees from violating the terms of the agreement.

“At a minimum, a sound employment contract should include date of commencement and duration of employment, hours of work, duties and responsibilities of the employee, remuneration, perks and bonuses, maternity and paternity leave, annual leave and long service leave entitlements, company policies regarding dismissal, suspension and indiscipline, termination notice period and post-employment restraints, job redundancy, intellectual property rights and probation period and rules around the disclosure of confidential information.

“It’s best to get legal advice when drafting employment contracts. If structured incorrectly, the agreement may not be enforceable in a court of law and you may be vulnerable to litigation.”