Much ink has been spilt on the merits of the push, by governments at both federal and state level, to return their workforces to office buildings. It is not our intent to wade into that increasingly politicised debate. Rather, we hope to inform the discussion by sketching out the legal contours of the ability of employers to direct employees back to the office in the COVID-19 era.

The starting point is the common law. Employers of all nature have the ability to determine the location of the workplace. They can also require employees to work from alternative locations or otherwise change the workplace, provided these directions are "lawful and reasonable". With Canberra presently experiencing no COVID-19 community transmission, we do not think that a direction to return to the workplace falls foul of this threshold.

Australian Public Service employment is also governed by a statutory overlay, the Public Service Act 1999 ('PS Act'). Section 25 of the PS Act empowers agency heads to "determine the duties of an APS employee in the Agency, and the place or places at which the duties are to be performed". The PS Act also authorises the APS Commissioner to issue directions, which are binding on all public servants. While it does not appear to us that the latest circular constitutes a direction per se, there would be nothing preventing the commissioner issuing it in that manner.

Accordingly, the APS has broad statutory and common law authority to direct its employees as to their place of work and it does not seem that, in the present circumstances (in Canberra at least), the APS has gone beyond the boundaries of that power.

But the inquiry does not end there. The government has obligations under the Safety, Rehabilitation and Compensation Act 1988 (effectively the Comcare law) and the Work Health and Safety Act 2011. These together require the APS to provide safe workplaces for its employees.

If levels of community transmission rose and the APS insisted on employees working from the office, this could trigger workers' compensation claims. By way of example: say an APS employee contracted COVID-19 and could demonstrate some likelihood that it arose in the workplace or while in transit. That employee could apply for, and would have reasonable prospects of being granted, financial support via the Comcare scheme.

In these circumstances, the relevant agency might also be considered in breach of the WH&S Act. Section 19 of the Act provides that someone "conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers ... while the workers are at work in the business or undertaking". Directing workers to work from a busy office, during an outbreak with widespread community transmission, might not meet this threshold.

However, although the WH&S Act has extensive provisions outlining its application to the federal government, there are no direct enforcement mechanisms - so the regulator, Comcare, would need to bring a compliance action (an arrangement, when it comes to enforcing against other agencies, that does not exactly scream independence).

Finally, employers have a common law duty to provide a safe place of work. This duty has both contractual and tortious dimensions. In the 1954 case of O'Connor v Commissioner for Government Transport, the widow of a plumber - who was killed in a workplace accident - sued his employer, the NSW government. Although the High Court rejected the claim on factual grounds, it observed:

"The defendant as employer was of course under a duty...to take reasonable care for the safety of the deceased by providing proper and adequate means of carrying out his work without unnecessary risk, [and] by warning him of unusual or unexpected risks...The standard of care for an employee's safety is not a low one."

The High Court reiterated, in 2005, that it is a "well-established proposition" that "an employer owes an employee a duty to take all reasonable steps to provide a safe system of work". If an employer, such as the APS, willfully exposed its employees to risk in relation to COVID-19, it is possible this duty might be breached.

While these limitations may constrain the APS to varying degrees, they provide little immediate comfort to public servants who do not wish to return to the office in the middle of a pandemic. However, public servants are not powerless in seeking a workplace location that they consider to be best suited to their personal circumstances.

Section 65 of the Fair Work Act 2009 (Cth) creates a scheme for facilitating flexible working requests. The scheme is accessible to any employee in the national workplace relations system who: a) is a parent of a school aged child; b) is a carer; c) has a disability; d) is over 55; e) is experiencing family violence; or f) is supporting someone who is experiencing family violence. A full-time, part-time or long-term casual employee who meets one of those criteria can make a request for flexible working arrangements, such as "changes in hours of work, changes in patterns of work and changes in location of work".

If a public servant made such a request, their department has 21 days to formally respond in writing. They must accept the request unless there are "reasonable business grounds" for refusal. Such grounds include that the request would be too costly, impractical, would result in significant loss of productivity etc.

The trump card for any public servant who meets the flexible working criteria is that they have just spent 2020 demonstrating that there are no reasonable business grounds for refusing a request. After six months or more of working from home, in most cases without any great expense or impact on productivity, it would be difficult for an APS department to refuse a flexible working request in good faith, in the absence of some compelling change in departmental circumstances.

The COVID-19 pandemic has uprooted many traditional employment practices, in the APS and elsewhere. In any period of great disruption, there are winners and losers. Some public servants are no doubt delighted to be back in the office; others have enjoyed not having to commute and found themselves more productive at home. While the Fair Work Act provides a scheme for facilitating flexible working arrangements, its application is limited. We would encourage the APSC, and individual departments, to remain flexible for public servants generally. In workplace relations as in so many other aspects of life, one size never fits all.