On Thursday I read the SMH article about how employees at a Sydney council were made to sign declarations that they weren’t supervising their children while working from home. Following the extension of the lock down and return to home schooling the council sent an email to staff saying “working from home and supervising home learning is not permitted.” The council directed parents to make other arrangements for their children’s supervision or take leave. I have heard other employers are taking a similar approach.
The council appears to be cloaking their position in work, health and safety laws. An interesting and self-serving approach, given they are happy for their staff to perform full time hours outside of school hours/ when they are not supervising their children. In effect, requiring work to be performed while the kids are asleep so what, say between 7pm and 6am each day. How is that a safer approach than allowing an employee to manage their responsibilities over the course of the day?
Can an employer ban you from supervising your kids while working from home?
Here is the thing, work from home plus home schooling is a nightmare. No working parent has any interest in doing it by choice, but there is a public health order in place in New South Wales requiring us to work from home. So are the council’s directions lawful and reasonable?
- Enquiring about your home situation while you are required to work from home is lawful and reasonable and you should never lie about it. Dishonesty is a valid reason for dismissal.
- This situation is not by choice, there is a public health order requiring us to work from home and to keep children home from school unless we are essential workers, despite what Scott Morrison may have said early on, we are not all essential workers.
- Whether or not the council or any employer can direct you to take leave depends on whether an award/agreement applies to your employment and what it says about the matter. If you are an award/agreement free employee, the National Employment Standards say an employer may require an employee to take annual leave, but only if the requirement is reasonable. There is a note in the legislation saying a requirement to take leave is reasonable if you have an excessive amount of leave accrued or the enterprise is being shut down.
- An employer can typically only direct an employee to take long service leave with one month’s notice, unless they have closed due to the public health orders and the employee agrees to the shorter notice period.
It is not, in my view, reasonable or lawful to require an employee to take annual or long service leave simply because they are a parent that is complying with the public health order. In fact, such a position clearly discriminates between parents/ carers and others and on that basis is arguably unlawful and actionable under the Fair Work Act 2009 and discrimination law.
How can you decline a direction to take leave?
So what to do if your employer takes this approach?
- Be honest about your home situation and set up.
- Explain how you intend to manage work and home schooling (wine is not an acceptable response beyond parent what’s app groups). In my experience, it worked best when my husband and I divided and conquered the day – but not everyone has two carer’s at home.
- If you have excessive leave, consider taking it. It will be better for your stress levels. Check your award/ agreement or contract to see whether there is an obligation to take leave in the circumstances.
- But if you are like most parents who need to hang onto their leave for school holidays or 2050 when we are all vaccinated and can travel again, politely decline the request on the basis it is not lawful or reasonable, and discriminates against you on the basis of your carer’s responsibilities. I mean, do non-carer’s have to provide a declaration about how much time they are spending talking to their dog/ cat, baking sour dough or banana bread or washing their tracksuits? Didn’t think so.
- Also, if you don’t have leave, your employer cannot stand you down without pay without your agreement, unless there is a stoppage of work.
- If your employer forces the matter, tell them you are ready, willing and able to work and reserve your rights to full pay.
Employers, be reasonable. We are supposed to all be in this together, remember? And if the SMH article is right, the data tells us working parents remain more productive than other members of the workforce. No surprises there from this working mother of 2.
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