This article deals with the following questions:
- When does an employer owe a duty with respect to occupational health and safety to employees who work from home?
- What are those duties under the OHS Act 2004?
- What can or should an employer do to fulfil any obligation owed to employees who work from home?
- Do the employer’s obligations differ, and if so how, when the employee is a person who does some work in the evenings and weekends at home but otherwise attends the office or work premises during normal work hours?
Under the OHS Act 2004, employers have an obligation to provide and maintain a working environment that is safe and without risks to health[1]. Additionally, employers have an obligation to provide adequate facilities for the welfare of employees, and to monitor the health and working conditions of any workplace under the employer’s management and control[2]. The definition of ‘workplace’ under the OHS Act 2004 means a place, whether or not in a building or structure, where employees or self-employed persons work.[3] The WHS laws go even further to define a workplace as ‘a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work’.
The wording in the OHS Act 2004 would suggest that an employer’s duty of care to an employee extends beyond the employer’s business location to any place an employee works (e.g. from home). This may have a significant impact on employers, particularly as the National Employment Standards provides that employees have the right to request flexible working arrangements including changes in hours or location of work[4].
Accordingly, in order to satisfy the employer’s obligations under the OHS Act, the employer should attend the employee’s home to assess the working conditions of the employee’s workplace with the view to negotiating individual OHS policies and procedures for both the employer and the employee to follow. Such policies and procedures should detail the parts of the house where the employee will be working, the equipment the employee will use (e.g. computer, desk and chair) the hours the employee will work including breaks (noting the maximum hours in the NES and any award conditions for award employees) and the likely hazards. In order to satisfy the employer’s obligation to monitor health and conditions in the workplace, the employer should also consider carrying out, or engaging a workplace inspector to carry out, systematic audits to identify any safety risks and to ensure the employee is complying with the agreed OHS policies and procedures.
The employer should also consider the health and wellbeing of the employee in working at home without colleagues and in a team environment (as the definition of health includes psychological health). As suggested by WorkSafe, when working from a home office or considering working from a home office, both the employer and the employee should consider the environment suitability for the employee’s duties, the layout of the office, lighting and communication/reporting issues that may arise[5].
Employers may still have OHS responsibilities for employees who work in the office but sometimes work on the weekend and weeknights if the work undertaken by the employee arose out of or in the course of the employee’s employment and if the employee was doing something the employee was ‘reasonably required, expected or authorised to be done in order to carry out duties’[6]. The court will also look at other factors including whether or not the employee regularly works late[7]
If an employee working at home sustained an injury, as mentioned above, the relevant test would be whether the injury sustained arose out of, or in the course of, the employee’s employment[8]. The definition of ‘injury’ extends to injuries incurred during an authorised recess, while the worker is travelling for work, while the worker is undertaking necessary training for work and/or while the worker is obtaining necessary medical advice/treatment. In Hargreaves v Telstra Corporation Limited[9], the employee fell down the stairs whilst trying to retrieve some cough medicine and was successful in suing her employer for compensation as she was absent from her desk for ‘necessities of nature’[10]. This case demonstrates how a worker may be able to obtain workers compensation during an authorised recess even when the employer does not have full control of the workplace and highlights the need for employers to set clear procedures for employees working at home.
Given the definition of the workplace is expanding as employees are becoming more and more accessible and the lines between work and home time are becoming increasingly blurred[11], the OHS Regulations need to clarify the obligations ‘of those in control of the work processes involved, and to provide for the co-ordination of OHS management efforts of all of the parties involved’[12] and employers and employees need to have clear policies and procedures in place which are regularly reviewed by both parties to ensure they relate to the changing workplace environment.
Rachel Derrico, Senior Associate, Rankin & Co.
The content of this article is intended for general interest purposes only and does not constitute legal advice. Contact the commercial lawyers at Rankin & Co. for specialised advice.
[1] Occupational Health and Safety Act 2004 (Vic), s 21(1).
[2] Ibid, s 22 and 26.
[3] Ibid, s 5.
[4] Fair Work Act 2009, National Employment Standards, s 65.
[5] WorkSafe,’ Officewise – a guide to health and safety in the office’, edition number 5, January 2006, page 46.
[6] Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 at 12.
[7] Hargreaves v Telstra Corporation Limited [2011] AATA 417.
[8] Accident Compensation Act 1985 (Vic), s 83.
[9] Hargreaves v Telstra Corporation Limited [2011] AATA 417
[10] Ibid, at 20
[11] Worldwide, G., in Watson et al, 2003, p.95. as quoted in Maxwell Report at 99.
[12] Johnstone, R. “Paradigm Crossed? The Statutory Occupational Health and Safety Obligations of the Business Undertaking”, Australian Journal of Labour Law, vol. 12, 1999(b), p.54.
