The rise of remote work has dramatically changed the office environment. It offers flexibility and convenience for both employers and employees, and a potential alternative to office work where the office is unavailable. Though the work may be remote, the mutual employment obligations of trust and confidence and good faith remain. It is important to understand how continuing to uphold these obligations changes in the context of remote work.

Section 69AAB-F of the Employment Relations Act 2000 (the ER Act) sets out the rights and obligations for employees and employers when an employee requests a flexible working arrangement. This includes working arrangements such as remote work and the employer’s obligation to genuinely consider and respond to the request. Understanding the rights and responsibilities of both parties in a remote work setting is crucial for a productive and legally sound arrangement.

Defining the Remote Work Relationship

This article focuses exclusively on remote work in employment relationships, but will be of some relevance to contractor arrangements as well.

A clear and comprehensive written agreement outlining the terms of the remote work arrangement can avoid costly disputes later. This agreement should consider factors that may apply specifically to remote work:

Work Hours and Availability: Establish clear expectations regarding work hours, availability, and communication protocols (there are specific requirements relating to availability provisions, and employers should seek advice if they wish to include such provisions).
Equipment and Technology: Specify who is responsible for providing and maintaining equipment (laptops, phones, software) and internet access – will an allowance be provided for employees who provide their own equipment?
Data Security and Confidentiality: Address the importance of data security and confidentiality, especially when working with sensitive information remotely. Include policies on data protection, password management, and acceptable use of company systems.
Setting clear expectations: what does the employer consider to be acceptable or not for an employee working remotely?

Employer Responsibilities

Employers have several responsibilities relating to remote work conditions:

Health and Safety: Under the Health and Safety at Work Act 2015 (HSWA), employers must ensure, so far as is reasonably practicable, the health and safety of employees. This includes their employees who are working from home, though the extent to which they can ensure a remote worker’s safety will inevitably be restricted to what they can reasonably control.
Data Security: Employers should provide training on data security protocols, and ensure remote employees have secure access to company networks. Data security should also consider the physical security arrangements of the employer’s data at the employee’s home.
Privacy Issues: Employees retain a reasonable level of privacy even during work hours. Employee’s work devices should only be monitored where there is a genuine reason for doing so, and not outside work hours.
Availability provisions: there are specific requirements for including availability provisions (often referred to as ‘on-call’ requirements) in employment agreements. Legal advice should be sought before seeking to apply availability provisions in employment agreements.

Employee Rights and Responsibilities

Remote employees also have specific rights and responsibilities under the ER Act and HSWA:

Right to a Safe Working Environment: Employees have the right to a safe and healthy work environment; this applies to the remote workplace.
Right to Privacy: While employers may need to monitor performance, they must respect the privacy of their remote employees. Clear guidelines on monitoring practices should be established.
Responsibility for Productivity and Communication: Remote employees are no less responsible for maintaining productivity, meeting deadlines, and communicating effectively with their team and supervisors. If this cannot be accomplished to the same degree as on-site workers, the remote-work arrangement may not be successful.
Responsibility for Data Security: Employees must adhere to company policies regarding data security and confidentiality.
Health and Safety Responsibilities: An employee must cooperate with any reasonable health and safety policies and reasonable instructions provided by their employer. An employee should work with an employer to identify risks and hazards and take steps to eliminate or minimise risks to health when working from home.

Staying Updated

By regularly reviewing and updating remote work policies, Employers will be able to provide equal employment opportunities to a broader group of people with less expense. This ensures that employees are provided with a positive and productive remote work environment, no matter the distance.

As remote work becomes more common, it is important that both employers and employees become familiar with how the law applies to remote working arrangements. When both employers and employees collaborate to meet their obligations, they can create a system that works for everyone—boosting productivity, protecting rights, and reducing risks (be they health and safety, or employment risks).

The first step in getting support is to talk with a lawyer from Frontline Law about your situation and see what options we can offer you. Contact Frontline Law for a free initial consultation.

*The information in this blog post is general in nature and is not legal advice. If you need advice, you should contact us about your specific situation.