Jennifer Mills: Employment Mills specialist on the PSA going to the Employment Relations Authority about working from home

Doubts over the PSA's arguments on work from home policies. 

The union's heading to the Employment Relations Authority after mediation didn't resolve differences with the Government on the issue. 

The PSA claims a move to get more workers in the office will have a big impact on women. 

Employment Law specialist Jennifer Mills told Mike Hosking she doubts the authority will side with the PSA. 

She doesn't believe there's an argument that any changes are indirect discrimination. 

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Episode Transcript

Speaker 1 (00:00):
To the Work from Home Department where mediation between the
government and the union's has fallen over. So it's off
to the Employment Relations Authority. So what does the law
say around about this? Jennifer Mills is an employment law
specialist in Cheesbag with this as well. Jennifer morning, Good morning, Mike.

Speaker 2 (00:14):
How are you.

Speaker 1 (00:15):
I'm extremely well. I think this has been invented out
of COVID. Correct me if I'm wrong, And if it has,
is there any actual well established law around whether you
can or who makes the rules whether you have to
follow them?

Speaker 2 (00:25):
Well, it absolutely has had its genesis because of the
COVID situation, and there was a guidance issued by the
government in twenty twenty which enabled public sector workers to
work from home by default. And what we've got here
is Sir Brian Roche issuing a new guidance which says
no working from home is not an entitlement. It's got

(00:47):
to be by contractual agreement between the employee and employer
and it can only be agreed where performance isn't compromised.
The PSA is running a novel argument that this is
discriminatory this guidance, noting that of course Sir Brian Roche
has very broad powers under the Public Service Act to

(01:09):
issue this guidance in any event. But the PSA's argument
is that it is discriminatory and it is inappropriate for
the government to restrict flexible working practices in this way.

Speaker 1 (01:21):
But they how can you argue about something that wasn't
even a thing until it was, and then you're just
going back to what it was beforehand.

Speaker 2 (01:29):
I understand that it's a good question, Mike. I understand
that the PSA are relying on the fact that there
is this new guidance and that this guidance is somehow
included in employees' collective agreements. But the argument that there's
a breach of workers collective agreements will necessarily fail because
the guidance expressly carves out any employee's express right to

(01:53):
work from home. So let's put that to one side.
The rest of the argument is that this new guidance
is discriminated tree because of the impact it has on women.
And I can't see a legal basis to run an hour.

Speaker 1 (02:05):
Were they're not running that this is of what a
pile of well, I mean, I suppose by my union,
I try anything on can they win? This would they
win this.

Speaker 2 (02:16):
In my assessment, the authority would not find that the
PSA's argument or arguments would be successful. I can't see
a successful argument that women are being treated differently by
reason of the metal families status, and I can't see
that it's indirect discrimination. Sure, there is a negative impact

(02:37):
on women, but the condition can be justified objectively, and
that's the legal test here. So I cannot see that
the authority would find in favor of the PSA.

Speaker 1 (02:47):
Good stuff, Jennifer, appreciate your time as always, Jennifer Mills,
who's with Jennifer Mills and Associates. You notice that it's
almost like the unions are overreaching on the pay equity law,
which might lead you to bel lead the pay equity
law might need changing. For more from the Mic Asking Breakfast,
listen live to News Talks at B from six am weekdays,

(03:10):
or follow the podcast on iHeartRadio.