The OHS dangers of flexible working arrangements and how to avoid them

  1. When does an Accounting Firm owe a duty with respect to occupational health and safety to employees who work from home?
  2. What are those duties?
  3. What can or should an accounting firm do to fulfil any obligation owed to employees who work from home?
  4. 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?

Your employees home can be defined as a workplace

Employers have an obligation generally to provide and maintain a working environment that is safe and without risks to health[1]; this extends to each workplace under their management and control. The definition of ‘workplace’ is a place where employees or self-employed persons work.[2] The Work Health and Safety 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 OHS Act 2004 therefore extends beyond the employer’s business location to any place an employee works (e.g. from home). This has a significant impact on Accounting firms, who regularly have employees working from home and who are facing requests for greater access to flexible working arrangements including changes in hours or location of work[3].

Formal work from home arrangements.

In the case of formal work from home arrangements, in order to satisfy an Accounting firm’s obligations under the OHS Act, it 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.

Accounting firms 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.

Adhoc work on weekends or out of hours

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’[4]. The court will also look at other factors including whether or not the employee regularly works late[5]

Injuries sustained at home

If an employee working at home sustains an injury, as outlined above, the relevant test would be whether the injury sustained arose out of, or in the course of, the employee’s employment[6].

In Hargreaves v Telstra Corporation Limited[7], 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’[8]. 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.

Recommendation

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.

 

[1] Occupational Health and Safety Act 2004 (Vic), s 21(1).

[2] Ibid, s 5.

[3] Fair Work Act 2009, National Employment Standards, s 65.

[4] Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 at 12.

[5] Hargreaves v Telstra Corporation Limited [2011] AATA 417.

[6] Accident Compensation Act 1985 (Vic), s 83.

[7] Hargreaves v Telstra Corporation Limited [2011] AATA 417

[8] Ibid, at 20

2018-05-04T01:17:10+00:00May 4th, 2018|Business Advice, Compliance, employees, Employment Law|16 Comments

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