How should hybrid working be regulated in the public sector?

By and

Thursday May 5, 2022

Time for fit for purpose legislation as employees work hybridly. (Lightfield Studios/Adobe)

A state of ‘COVID-normal’ is emerging, as public servants return to their pre-pandemic workplaces. Within this new normal, a fundamental shift has emerged: many more employees are working hybridly – working some days at home and others at their employers’ premises.

Organisations are considering what the new world of work might look like, how teams can work together in a hybrid environment, and what systems are needed. An area receiving less attention, but also of importance, is how hybrid working should be regulated to ensure fairness and meet business needs.

In our recent article, we argue that working from home is no longer an “individual flexibility”, and should be regulated as a collective condition of employment. Our current conception of how to regulate working from home is outdated.

Working from home is currently largely regulated through human resource policies. These policies are subject to change without consultation with employees. This is why unions would like to see working from home provisions be formally included in enterprise agreements. This is difficult, as the current APS bargaining framework requires trades offs for any enhancements to conditions of employment.

Regardless, the Community and Public Sector Union is planning on negotiating for working from home provisions to be included into collective agreements. While individual working from home arrangements would be negotiated between an employee and their manager, as currently occurs, the big change is that a collective presumption that employees can work from home would underpin the agreement.

Legislation also regulates working from home, but only for some employees. Under the Fair Work Act, only certain groups of employees have a right to request to work flexibly, including to change their location of work. Researchers have argued that eligibility should be broadened to enable more workers to be able to request to work flexibly.

Industrial awards came to the fore in the pandemic as the most flexible form of regulation governing working from home arrangements. During the 2020 lockdown, employers and unions agreed to temporarily amend awards to allow, among other things, workers and employers to agree on locations and patterns of work to support public health initiatives. While important, these amendments have since lapsed.

It appears that all forms of existing labour regulation have some limitations when it comes to regulating working from home. How then might this increasingly common form of working be best regulated in the “new normal”?

International practice could be instructive for the public sector. In the US, the Telework Enhancement Act 2010 requires that public servants “work from home to the maximum extent possible”. With the advent of the pandemic, guidance reinforcing this requirement was issued to public sector agencies. This is a collective approach, covering a whole sector.

In Europe, the European Framework Agreement on Telework (2002) contains provisions on work health and safety, provision of equipment, and principles of non-discrimination against teleworkers. It also enables working from home to be terminated by individual or collective agreement – again demonstrating a collective approach.

More recently, various European countries were reviewing and/or amending their working from home regulation. In Italy, public sector organisations are required to consult with unions and develop a plan for teleworking. In Luxembourg, regular teleworking may require agreement through collective bargaining. In Germany, legislation has been proposed to create a right to telework for all employees.

The current forms of regulation governing working from home need reviewing. Now that COVID-normal is being established, it is time for policymakers, unions and human resource practitioners to craft regulation that is fit for purpose as employees work hybridly.


Agencies without hybrid work a deal breaker for many public servants, survey shows

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