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Confusion surrounds Victoria’s work from home order

Businesses in Victoria could be at risk of incurring fines of up to $10,000 as mixed messaging around the state’s order to work from home causes confusion for employers.

On Friday May 29, Victorian Premier Dan Andrews announced that Victorians who have been working from home must continue to do so for at least another month, as part of efforts to prevent a second wave of coronavirus.

Andrews’ statement advised that from June 1, the obligation for employers to keep their staff working from home would be included in the chief health officer’s directions.  

“If you have been working from home, you must continue to work from home,” the statement read.

Businesses were advised that they would be subject to spot checks and could face fines of up to $9913 if they force staff back to the office.

However, two days later, the amended Restricted Activity Directions, dated Sunday May 31, phrased the direction differently, causing much confusion for businesses.

Clause 16 of the Restricted Activity Directions states: “An employer must not permit an employee to perform work at the employer’s premises where it is reasonably practicable for the employee to work at the employee’s place of residence or another suitable premises which is not the employer’s premises.”

Georgie Chapman, partner at HR Legal, told Inside FMCG that prior to the introduction of clause 16, there was no obligation on employers to ensure employees work from home, however, clause 6 of the Stay Safe Directions has always provided that a person is permitted to attend an employer’s workplace only if it is not reasonably practicable to work from home.

“There is some concern surrounding the new positive obligation on employers to prevent employees being in the workplace, even if they had been at the usual workplace in May – particularly because a breach of the obligation carries significant penalties,” Chapman told Inside FMCG.

“This is particularly the case given the easing of many restrictions from June, with many employers have been planning their employees’ return to the workplace.”

Chapman said it is important to consider the circumstances in which it is “reasonably practicable” for the employee to work at home.

“What is reasonably practicable will depend on a number of circumstances including: the individual employee’s role; whether the employee is in a vulnerable person category for contracting the virus; the suitability of work activities to be performed from home; the home environment, such as partners, children, vulnerable persons and pets; the communication requirements such as frequency and type; the mental health and emotional wellbeing of the employee; and work health and safety requirements,” she said.

The Premier previously indicated that Victorians can only safely use public transport at 15 per cent capacity, therefore an influx of employees returning to office could heighten the risk of community transmission.

Chapman said while the new direction may appear to be a ‘backwards step’, it is “a necessary further deterrent to prevent a ‘second wave’ caused by a premature return to the workplace”.

Inside FMCG contacted the office of the Premier of Victoria for comment.

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