14 December 2011
Kathryn Dent, Director
The home as a workplace is not without risk as was recently demonstrated in the case of Hargreaves v Telstra  AATA 417 (17 June 2011) (“Telstra case”).
Aside from the obstacles of partners, neighbours, children and pets, more seriously there may be stairs to navigate, worn carpets and floors that are slip and trip hazards, not to mention issues of electricity, ventilation, noise and ergonomics. With advancements in modern technology allowing remote access to the office, coupled with legislated rights to request flexible work practices, the practice of working from home is set to continue and increase. Whilst employers may want, and indeed may be obliged, to accommodate working from home arrangements, employers also need to be aware of the liabilities that such arrangements give rise to so that they may take appropriate steps to discharge their legal obligations and as far as possible, minimise the risks where they do allow these arrangements.
The employer’s legal obligations
The obligations owed by an employer to an employee in a working from home situation can often conflict. On the one hand the Fair Work Act 2009 (Cth) requires an employer to consider an employee’s request for flexible working arrangements which may include a request to work from home. However, there is also the significant duty an employer bears to its employees (and indeed third parties) both at common law and under health and safety legislation, to ensure that its employees and others are not exposed to any risks to their health, safety or welfare arising out of the employer’s undertaking. Additionally, an employer must ensure it pays its employees the minimum legislated rates of pay and in a working from home situation, absent proper reporting requirements and policies, an employer may inadvertently breach these.
In the Telstra case the employee sought and was awarded workers’ compensation for a range of injuries which included shoulder injuries sustained in two falls at home. Telstra was unsuccessful in denying liability, the court finding that the injuries arose out of, or in the course of, the employment as the employee was working from home at the time, even when the first fall occurred as she was descending stairs to get some cough medicine and fell during a coughing fit. This leads to another salutary lesson, some breaks will still be regarded as work-time and therefore obligations will be owed and liabilities will continue, at these times.
Whilst the ultimate result differed, the Telstra case is not inconsistent with an earlier Full Bench decision of the South Australian Workers’ Compensation Commission WorkCover/EML (Lauman Pty Ltd t/as Roseworthy Roadhouse) v Launer  SAWCT 55 (17 October 2008) which emphasised that an employee bears the onus of proving the connection between what they were doing when they were injured and their work duties. In that case the fact that the employee permanently resided at the workplace in a live-in arrangement did not give rise to a compensable claim when the employee was injured there at four o’clock in morning.
The employee’s legal obligations
Reciprocal to an employer’s health and safety obligations are those an employee will owe, under legislation and at common law, to its employer both to take care of themselves and others. These obligations may also be owed by virtue of the employee’s contract of employment if it requires compliance with an employer’s lawful and reasonable directions and policies. An employer can therefore justify rigorous policies and procedures to govern working from home arrangements not only on the basis of their legal obligations but also on the basis of an employee’s.
How to meet the obligations and minimise the risk
The starting point of ensuring health and safety in a workplace is to understand what might compromise the safety of it. This understanding is gained by the employer undertaking a hazard identification and risk assessment. Where the home is a workplace then this is where the hazard identification and risk assessment must take place in much the same way as an employer would assess the hazards and risks involved if it was typically not present where its employees were working, such as where it has a workforce of contractors or sales people.
The challenge involved where the employer is not on site is to ensure that risks are anticipated and control measures put in place, or if they were not anticipated but arise, that they are quickly addressed.
Controlling or eliminating the identified risks in a workplace which is also a home may include replacing, repairing, servicing or providing appropriate equipment, and implementing policies, but should also involve an agreement between the parties as to what the specific working from home arrangements are, something which was missing in the Telstra case.
A working from home policy should include the requirement of employees working on this basis to comply with other relevant policies such as a workplace health and safety policy and, given the likely nature of work being performed from home, computer and internet policies, privacy policies and confidential information policies.
The specific working from home arrangements should supplement the working from home policy as each home is as individual as the employee who lives and works within it. This agreement should therefore detail hours of work, how and where work is to be performed and reporting requirements. Setting out the hours of work is important for a variety of reasons not the least of which is to ensure that the employee is being properly remunerated, to enable performance management and to assess, where an injury occurs, if it arose out of or in the course of employment.
What should employers do now?
PCS has devised the checklist below to assist employers confronted with working from home requests. This checklist has been designed to assist employers to balance the bene ts in allowing working from home arrangements which might also be required by law, with the risks which arise in this context. Being aware of where your organisation’s work is performed and implementing policies which regulate the safe and legal performance of work will help minimise the risks that such atypical work patterns present.