Asia-Pacific employers must be aware of their rights and responsibilities with remote workers

Australian workers do not currently have a general right or entitlement to work from home. They can request to work from home under certain conditions if they have been with their employer for at least 12 months.

The Fair Work Commission is currently conducting a substantial review into whether flexible employment arrangements, including the right to work from home, should be recognised as a legal right. This review is part of a broader community discussion about the future of work and could lead to significant changes in employment law. It also reflects a growing trend towards formally accommodating flexible work arrangements and balancing the needs of businesses with employee preferences.

The Fair Work Commission’s discussion paper on work and care (151-page / 3.4MB PDF), published as part of the Modern Awards Review 2023-24, provides a perspective on remote working without explicitly advising employers to either allow or encourage it. The paper acknowledges that there may be positive aspects of remote and hybrid work, such as the expansion of employment opportunities, reduced commuting times and enhanced flexibility for employees to manage work alongside caring responsibilities. The paper also points out the potential downsides, including the possibility of reduced spontaneous collaboration, challenges in skill development from a reduction of on-the-job mentoring, and the risk of work-life boundaries becoming blurred, potentially impacting employee well-being.

Employers should tailor their approach to remote working to fit their specific organisational needs and the well-being of their employees, while staying up to date on any legal changes and best practices in this evolving area of workplace relations.

To ensure compliance with legal obligations and to maintain a productive, safe, and secure working environment, employers with a remote working workforce should consider both employment and work health and safety legislation, including the National Employment Standards, the Fair Work Act 2009, applicable state work health and safety legislation and workers compensation insurance coverage, and the implementation of an organisational remote working policy, potential cybersecurity concerns, employee mental health and well-being, and tax obligations for both Australian and overseas workers.

Employees in mainland China do not have the right to unilaterally work from home. The workplace must be specified and agreed on in an employment contract, and arrangements to work from home usually require mutual agreement between the employer and the employee.

There are no specific laws or regulations at the national level in mainland China that govern remote work. However, the government and courts have issued several circulars setting out that employees working from home should receive the same pay as those working in the office.

Flexible working arrangements

Recent developments in local laws and regulations in some areas encourage female employees during their pregnancy or breastfeeding period to negotiate with their employers for flexible work arrangements, such as working from home, and this concept is increasingly gaining support.

Workplace injury claims

Previously, under the social insurance scheme, it was challenging for an employee to file a workplace injury claim if the injury occurred while working from home. An increasing number of claim handling departments are now adopting a more flexible approach when deciding whether to accept a claim related to a work-from-home incident. This trend could remove a major obstacle to the practice of working from home and influence an employer’s decision to allow remote work.

Safety considerations

Employers are generally required to provide employees with conditions that ensure workers’ safety and hygiene, including maintaining a safe and clean workplace. The extent of an employer’s liability for workplace safety when an employee works from home is not clearly defined under current laws and it is recommended that employers confirm whether an employee has a safe and clean workspace before agreeing to a remote work arrangement.

Employers should evaluate if the employee’s remote workspace aligns with their role, considering the security of the workspace for maintaining confidentiality where necessary and whether employers can equip the workspace with the necessary facilities to fulfil their work responsibilities. Further, employers should consider the suitability of remote work in relation to the employee’s remuneration structure, for example whether the employee is paid per task rather than on an hourly basis.

It is also recommended that employers clearly specify their respective obligations and responsibilities in a work-from-home arrangement in their agreement with the employee.

For queries related to remote working in mainland China, please contact Ginger Zhou of Pinsent Masons.

There is no statutory right for employers or employees to have remote working arrangements in the Hong Kong Special Administrative Region (SAR), but parties are free to agree on a remote working arrangement in their employment contracts.

The Hong Kong Labour Department has published a leaflet recommending flexible work arrangements (16-page / 1274KB PDF), including remote working, in which remote working is described as a “win-win” for both employers and employees. This is part of the ‘good human resource management’ theme promoted by the Labour Department.

Generally, employers adopting remote working practices are bound by all Hong Kong SAR employment laws and protections including the relevant ordinances, such as the Employment Ordinance, Occupational Safety and Health Ordinance and Employees’ Compensations Ordinance, and common law duties to take reasonable care to ensure the health and safety of employees at work.

Data security

Employers should also consider taking reasonably practical steps to ensure the security of personal data, as remote working arrangements often involve remote access and the transfer of documents to employees. While not legally binding, the privacy commissioner for personal data has issued guidelines recommending good practices to protect personal data in work-from-home arrangements.

In addition, employers operating in specific industries, such as financial services, should check if there are any industry-specific guidelines and requirements which relate to remote working.

For queries related to remote working in Hong Kong SAR, please contact Norman Leung of Pinsent Masons.

There is no statutory right in India for employees to work remotely. Prior to the Covid-19 pandemic, only a handful of organisations recognised and considered the option to work from home. Growing acceptance of remote and hybrid work models in India has been fuelled by the pandemic and employers have been revisiting Indian regulations to assess their applicability in remote working scenarios. There appears to be industry-wide acceptance regarding the adoption of remote and hybrid work models.

Flexible working arrangements and work rules

In line with amendments in 2017 to Indian regulations regarding maternity leave, women are permitted to work from home after their regular maternity break, in agreement with their employer and provided the nature of their work allows them to do so. India is in the process of consolidating its national labour laws into four labour codes, one of which is the Industrial Relations Code, 2020 (IR Code). Yet to take effect, the IR Code contains ‘standing orders’, which mandate employers of certain establishments to prescribe work rules for their workforce. A draft of the proposed standing orders proposed by the federal government allows work from home flexibility by employers in the services sector, subject to mutually agreed written conditions of employment between the employer and worker.

Although there is currently no legislation overseeing remote work, India’s central and state governments have released specific regulations and guidelines for employers whose employees work from home or remotely. Lately, employers have largely continued to implement flexible working models for ease of convenience for employees and, in some cases, as retention strategies. Organisations implementing remote or hybrid work models adopt specific internal guidelines on remote working.

Companies registered with the Indian Department of Telecommunications, Special Economic Zones in India and Software Technology Parks of India are required to comply with certain prescribed conditions for their employees to work from home.

Considerations for employers permitting remote working include productivity tracking, overtime compensation management, occupational health and safety measures, harassment concerns, new incidents of misconduct, business reimbursement and employee compensation obligations, and tax considerations.

Overtime considerations

Overtime compensation in India is dependent on several factors, for instance, nature of work performed, wages earned by employees and the Indian state where they are located. Eligibility and payment of overtime has become complex in the Indian remote working landscape, as employers continue to have diminishing visibility on an employee’s actual number of hours worked.

In several cases, employees choose to work from their home state as opposed to the state where the employer is located, creating ambiguity as to which state’s overtime laws would apply. To reduce ambiguity and potential risks, employers should clearly outline and publish overtime policies and practices and ensure that employees continue to remain tagged to one state - usually where the employer is located - to provide clarity on the laws which would apply to them.

Safety considerations

There are different specifications relating to health and safety measures under state-specific shops and establishments regulations, contract labour regulations and laws on employee compensation for injuries. Currently, there appear to be limited judicial precedents in India providing clarity on the application of these regulations to remote working employees. That said, India’s anti-sexual harassment law provides a wide definition of ‘workplace’ and covers an employee’s dwelling place or house. Courts in India have agreed that the term ‘workplace’ should not be limited in its interpretation to office premises alone and must be interpreted broadly to include spaces that are beyond the compound of a traditional workplace, ensuring a suitable atmosphere for employees. It is essential that employers update their policies and practices to address these legal considerations adequately.

Remote working scenarios are likely to introduce different forms of misconduct which would otherwise not have existed. Employers should revisit their conduct policies and practices to prevent possible incidents which are likely to amount to misconduct in a remote working scenario, such as unprofessional etiquette during audio-visual meetings and repeated instances of absenteeism or unavailability during work hours.

Compensation

Historically, Indian employers structured employee compensation models with the aim of incentivising employees to work more, and allowances for night shifts, travel and meals were common. With employees working remotely, several of these allowances may not be relevant and are likely to be redundant. In addition, employees are now required to self-invest and make the appropriate adjustments to be able to work from home. In this context, employers should re-examine their compensation structures to align allowances and other benefits payable to employees working remotely so that working remotely does not result in cost implications for employees.

Tax considerations

Employers permitting employees to work remotely outside India should also be mindful of potential ‘permanent establishment’ risks and related tax implications that are likely to be triggered because of remote working arrangements, depending on factors such as how long employees are based outside India. Tax evaluation of such arrangements - including the assessment of applicable double tax avoidance agreements between India and the country where employees would be working remotely – might be necessary.

For queries related to remote working in India, contact Gerald Manoharan and Sonakshi Das of JSA Law.

Employees in Japan do not have the right to work remotely unless their employer specifically grants it to them. According to a survey by the Ministry of Land, Infrastructure, Transport, and Tourism, remote work in Tokyo declined from 42.3% in 2021 to 38.1% in 2023. Despite the decline, there does not appear to be an effort by Japan’s government to discuss any changes to provide employees with the right to work remotely. 

Guidelines

In March 2021, the Ministry of Health, Labour and Welfare issued the Guidelines for the Promotion of Appropriate Introduction and Implementation of Telework to promote high quality telework arrangements by creating an environment in which employees can work comfortably while their employers implement appropriate labour management measures. The guidelines noted certain benefits of remote work for employees such as reduced stress from commuting to work, ability to choose working hours and place of work, and ability to balance work with childcare.  The benefits for employers include increased work efficiency of their employees, reduced of rent costs, and an overall increase in their workforce as remote work attracts new employees and retains working employees with childcare and other commitments. 

The guidelines provide additional considerations for an employer with a remote working workforce, such as establishing company work rules on working remotely. The guidelines confirm that the Labor Standards Act, the Minimum Wage Act, the Industrial Safety and Health Act and the Industrial Accident Compensation Insurance Act continue to apply to employees who engage in telework. In addition, employers should establish rules on remote work through labour-management consultations and make them fully known to employees appropriately so that remote work can be implemented smoothly.

The guidelines also note that the employer should not place an undue burden on employees and that employers should ensure their work rules establish criteria for providing employees with an additional allowance to pay for expenses that would result from telework such as home telephone and electricity fees.

Safety considerations

In addition, the guidelines recommend that employers implement measures such as a health counselling system and an appropriate evaluation process, and encourage communication, to ensure employee wellbeing. As the employer is required to track the employees’ working hours It is advisable to use an appropriate IT system so that the employer can track the employees’ working hours appropriately. The guidelines recommend measures to prevent employees from working long hours at home so having an IT system which can track an employee’s working hours and potentially restrict access to the company’s system after the end of a workday could help avoid unnecessary work for the employee. 

The guidelines also recommend measures for employers to prevent remote work harassment such as the development of systems to respond to a request for consultation from an employee regarding harassment and to deal with such consultations in an appropriate manner to ensure a safe working environment for the employee.

For queries related to remote working in Japan, contact Grant Tanabe and Makoto Ohsugi of Aquaxis Law Office.

Under Philippine labour laws, employees may only work remotely if the employer gives their consent.

Legislative considerations

Republic Act No. 11165 – known as the Telecommuting Act – allows for employers to offer a telecommuting program to their employees on a voluntary basis and upon terms agreeable to both parties. Under a telecommuting program, an employee is allowed to work from an alternative workplace including but not limited to the employee's residence, co-working spaces, or other spaces that allow for mobile working.

If an employee chooses a telecommuting program, they are entitled to the same treatment as employees working at the regular workplace in terms of their rate of pay, rest days, workload and performance standards, and access to training, among other things. Employers agreeing to a telecommuting program must ensure that:

• the terms and conditions of telecommuting are not less than the minimum labour standards and do not diminish the terms of employment in any employment contract, collective bargaining agreement, or company practice;
• ·necessary measures are taken to protect the data remotely processed by a telecommuting employee and to prevent the isolation of the telecommuting employee from the rest of the workforce; and
• the Department of Labor and Employment is notified of the implementation of the telecommuting program.

The employer must also cover the cost of facilities, equipment and supplies for the implementation of a telecommuting program.

Tax considerations

Employees who work for employers in the Philippines must pay income taxes to the Philippine Bureau of Internal Revenue even if they perform their work abroad. In line with the Philippine Tax Code, employees who work remotely and reside in the Philippines must pay income taxes received from Philippine or foreign employers. Similarly, under the National Internal Revenue Code, employees who work remotely abroad must still pay taxes on income sourced within the Philippines, such as income from a Philippine employer.

Workplace injury claims

Employers should also note that, under the Employee’s Compensation Program (ECP), they are required to pay compensation for disability or death due to injuries sustained by employees while performing their duties at home. The ECP is a government program funded by employers that provides compensation packages to employees or their dependents in case of work-related sickness, injuries or death. To access benefits under the ECP, the employee must show that there is a written directive or order from the employer for the employee to perform work at their residence, and the death or injury was sustained while discharging their duties.

For queries related to remote working in the Philippines, contact Mel A. Macaraig, Regina Gamboa-Pimentel and Jennifer D. Pagay of Castillo Laman Tan Pantaleon & San Jose.

The Tripartite Alliance for Fair and Progressive Employment Practices has published the Tripartite Guidelines on Flexible Work Arrangement Requests (20 pages, 1,738 KB PDF), which employers are encouraged to follow regarding adopting flexible work arrangements. The guidelines came into effect on 1 December 2024.

While the guidelines do not have force of law, employers in Singapore are strongly encouraged to comply with them. The Ministry of Manpower has also stated that, in cases where employers are unwilling to comply with the guidelines, the Ministry may issue a warning and require them to attend corrective workshops.

Flexible working arrangements  

The guidelines set out how employees should request flexible working arrangements (FWAs) and use them, and how employers and supervisors should handle FWA requests. The guidelines only cover formal FWAs, which are long-term arrangements that require planning to ensure business continuity. Informal requests, such as ad hoc arrangements, are not covered.

Safety considerations

Additional considerations that may apply if an employer has a remote workforce include the Workplace Safety and Health Act 2006 of Singapore (WSH). Under the WSH Act, a ‘workplace’ is defined as any premise where a person might work, including places of remote work. As such, employers have a duty to take measures that are necessary to ensure the safety and health of their employees, ensuring that employees who are working remotely have the necessary information, training and supervision required for them to work.

Minimum standards

Employers should also ensure that their implementation of FWAs do not breach any minimum standards under the Employment Act 1968 of Singapore (EA). This includes requirements relating to an employee’s entitlement to holiday, annual leave and sick leave and, for employees covered by part 4 of the EA, to ensure that FWAs still accommodate rest days and an acceptable number of hours of work. In addition, employment agreements must contain certain key terms, such as details on the employee’s working arrangements. The Ministry of Manpower also strongly encourages employers to include the employee’s place of work in the employment agreement if the work location is different from the employer’s address.

Tax considerations

Lastly, employers should consider whether withholding tax implications would apply if they have approved an employee’s FWA that involves working at a location outside of Singapore. Under the Income Tax Act 1947 of Singapore, employers that make payments to a non-resident individual must withhold a percentage of the payment and pay the amount withheld to the Inland Revenue Authority of Singapore as withholding tax, where a non-resident individual refers to an individual who is in Singapore for less than 183 days in a calendar year. Employers should also consider whether there is a risk of establishing a permanent establishment in the jurisdictions where the remote worker is based.

For queries related to remote working in Singapore, please contact Mark Tan, Mayumi Soh and Khione Ngai of Pinsent Masons. 

The primary source of employment law in South Korea is the Labor Standards Act (LSA), which covers essential areas such as labour contracts, wages, work hours and termination. The LSA applies to all businesses with five or more employees, although some provisions may apply to smaller businesses as stipulated by Presidential Decree. 

Remote work arrangements in South Korea are based on mutual consent between the employer and the employee. Employers can implement remote work by amending employment contracts, rules of employment (ROEs) or collective agreements. Unless a contract specifies a fixed workplace, employers can require employees to split their working time between home and the office.

Employers must establish clear guidelines for remote work, including eligibility criteria, working hours and communication expectations. They are also responsible for providing necessary training and support, ensuring a safe home workspace, and managing performance effectively.

Safety considerations

According to the Ministry of Employment and Labor’s Comprehensive Manual for Working from Home, accidents that occur at home are classified as occupational accidents. Accordingly, employers must establish minimum safety standards for their employees’ remote working environments.

For queries related to remote working in South Korea, please contact Jessica Park and Aaron Goonrey of Pinsent Masons.

Legislative requirements

Thailand’s new work from home (WFH) legislation amending the Labour Protection Act (No. 8) B.E. 2566 (2023) came into effect on 18 April 2023.

The accompanying legislative remarks state that the proposed amendments to the Labour Protection Act will provide additional options for work arrangements between employers and employees, upgrade the level of labour protection, increase work stability, and improve quality of life for employees in Thailand.

The legislation adds a single section to the Labour Protection Act, providing that an employer and an employee “may agree in the employment contract” that the employee is allowed “to bring work . . . to perform at home or at the residence of the employee, or anywhere that the employee can work remotely through information technology, if the nature of the work permits.”

The biggest question surrounding the WFH legislation is whether employers must allow employees to work remotely. The phrase “may agree” suggests that employers do not have to agree to allow an employee to work remotely.

Another important aspect of the amendment is that there is no criminal punishment attached to it, which suggests that the legislation promotes remote work, rather than penalising any wrongdoing.

The WFH legislation provides that employers are responsible for ensuring that remote work agreements are in writing, either physically or electronically, and may include:

• the period of the agreement;
• normal working hours, rest periods and overtime work;
• criteria for overtime work, holiday work and various types of leave;
• scope of work and control or supervision by the employer; and
• responsibility for arranging supplies and equipment, including necessary costs relating to the work.

Right to disconnect

The WFH legislation also gives employees who work from home the right to refuse contact from the employer, or the supervisor, beyond working hours. In addition, employers must treat remote employees equally to employees who work on the premises.

For queries related to Thailand, contact Pimvimol (June) Vipamaneerut and Dusita Khanijou of Tilleke & Gibbins.