Lifting the Sydney Fog – “No, you can’t work at home. I need you in here at Work”

Can you say it? When and to whom?

As new and complex public health orders arrive hourly, how are employers to respond?

The blurred lines between independent contractors and employees just got further shrouded by an early morning Sydney fog.

There are two prongs to the public health movement orders affecting working at home.

Direction to Stay at Home

The first prong is a general exemption from the direction to stay home.  The government directs that you must not leave your home, without “reasonable excuse”. A reasonable excuse includes to do work which cannot be done at home.  There are many reasons why work cannot be done at home.  The reason might relate to the task, or to characteristics of the workplace or the home or both.  This direction applies to work generally, it is not specific to employees.

Direction to Employers to Allow Work at Home

The second prong shifts risk to employers and gives extra power to employees that might be forced to attend work by their employer. The government directs that an employer must allow an employee to work at home if “reasonably practicable”. This direction is to employers only, not to those obtaining work under independent contracts. It introduces a qualification of reasonable practicability, whereas the general exception from the rule of a reasonable excuse is simply: “The work cannot be done at home.”

So where does that leave you?

Self employed

If you work for yourself and need to leave home for work, you must be able to prove that you cannot do the work at home.  Make sure you have a reason you can substantiate.

Employers – must allow work at home unless “not reasonably practicable”

The direction that an employer must allow an employee to work at home applies to employees only, not independent contractors.

If you employ others under an employment contract,  and if the work cannot be done at the employee’s home, you can direct them to attend work, if permitted by the employment contract.  However, if the employee refuses, saying it is not reasonably practicable to work from home, then the employer should be ready to show why it is not reasonably practicable to work from home,  to avoid breach of the direction.

Further, the use of “reasonably practicable” cross references the employer’s obligation to assure health and safety in the workplace, not just for staff, but for everyone, as is reasonably practicable.  This requires a risk assessment and controls to manage the risk.

How do employers decide if it is safe to work from home?  The NSW government provides resources, and specialist consultants can assist where employers do not have the expertise.

Contractors with independent contracts (and Employers)

Work as a “reasonable excuse” applies to everyone – sole traders, contractors, employers and employees.

If you contract your staff through independent contracts rather than employment contracts:

• The contractor directing the work can say: “this work must be done here”, in which case, if the contract so requires, and if it is safe, the sub contractor is bound to follow that direction.
• The contractor can say “I can work from home. I don’t agree that I have a reasonable excuse to come into work” but will not be able to say, under the public health order, as can an employee: “you must allow me to work from home, it is reasonably practicable to do so, and if you say no, you will  breach of the Minister’s direction to allow employees to work at home”  (and implicitly threaten, “If you do, I might dob you in, not just to SafeWork NSW, but to the police”).

The requirements of the work health and safety laws mean that there is probably not much difference between employees and independent contractors, except that employers are more likely to get a visit from the police, not just from Safe Work NSW, if they require workers to not work at home.

There is some sense to the differing treatment in that an employer exercises more control over an employee than over an independent contractor.  However, this control distinction is a fast moving Sydney fog, as illustrated by the Uber Case and the Crisis Couriers Case.  In the Uber Case, an Uber driver was an independent contractor, not an employee, but in the Crisis Courier Case, the bicycle courier was found to be an employee, not an independent contractor. You can see an outline of the two cases in our Peter McNamara’s article “Blurred lines:  the difference between an independent contractor and an employee” here.

Health and Safety

The lesson is: take care. Whether your workers are employed or independently contracted, look at the contract and how it operates, assess the degree of control, and do a health and safety risk assessment that will withstand independent scrutiny.  Document your decision to require that the person work away from their residence.

To keep legally safe, and to let the weak Covid-19 winter sun shine through the Sydney legal fog, contact Peter McNamara.

The new COVID-19 Public Health Orders are published here.

Caveat: Public Health orders are changing each day. Get your own up to date legal advice.