There is a revised regime of workplace heath and safety now in effect in Queensland and it will have implications for employers who allow employees to undertake work from home. In particular, a recent decision has shown that when an employee is working from home this may constitute a workplace and therefore the employer’s workplace health and safety responsibilities extend accordingly.

Employers should not make a decision to allow working from home lightly but on consideration of all the circumstances can make a decision and implement a practice which allows for flexible working arrangements for employees but reduces liability owed by the employer.

Fear of Liability

Under the Model Work Health and Safety Act, which is in force in Queensland under the Work Health and Safety Act 2011 employers are required to, so far as is reasonably practicable, ensure the health and safety of their workers. Extending this obligation is the revised definition of “workplace”:

“A workplace is a place where work is carried out for [an employer] and includes any place where a worker goes, or is likely to be, while at work.”

It is apparent that this very general definition could encompass an employee who is working from home.

Hargreaves and Telstra Corporation Limited [2011] AATA 417

Ms Hargreaves worked three (3) days in the Telstra offices and two (2) days working from home. To facilitate her working from home, Telstra supplied a laptop, cabling, mobile phone and access to Telstra’s programs and systems (at Telstra’s expense).

While working from home, Ms Hargreaves sustained injuries from two separate incidents in which she fell down her stairs; in August and October 2006. Ms Hargreaves claimed against Telstra, and Telstra denied liability on the basis that the injuries did not arise in the course of Ms Hargreaves’ employment; specifically the incidents did not occur within her home office, the deemed “workplace”.

The Tribunal rejected this argument, and held that Ms Hargreaves’ injuries were incurred in the course of her employment with Telstra; that is, it is probable and reasonable that an employee requires breaks from their workspace, including when working from home.

This case turned on the reasons for Ms Hargreaves’ leaving her workspace, and differing reasons may provide a differing result.

Ledwidge and Optus Administration Pty Ltd [2008] AATA 58

Arthur Ledwidge worked for Optus as a Customer Field Services Technician. On a Sunday in January 2006 Mr Ledwidge injured his back while he was cleaning and organising the interior of his Optus provided van for the coming week.

Mr Ledwidge gave evidence that Optus team leaders encouraged technicians to keep their vehicles clean and tidy; further they would often comment on the appearance of the Optus provided vans. While the Optus technicians were not directed to clean their vans outside of work hours, Optus team leaders were aware of this practice and implicitly encouraged it.

The Tribunal accepted that the vans and supplies were part of the workplace; further it was found that Mr Ledwidge was engaging in an activity that he was reasonably expected to do in relation to his employment.

On this basis, the Tribunal found that Mr Ledwidge’s back injury arose out of or in the course of his employment with Optus.

Janus and John Holland Group Pty Ltd [2009] AATA 951

Udo Janus was a boiler maker employed by John Holland Group. In August 2008 Mr Janus was at home preparing to commence his afternoon shift. This included bending over to put on his work boots; this activity resulted in severe back pain.

Mr Janus alleged that the John Holland Group supplied the work boots and required that all employees were wearing them before they boarded the bus to travel to the worksite.

The Tribunal rejected the argument that the boots were required to be put on at home before work and instead held that the expectation was that the boots were required to be put on prior to commencing work at the worksite. As a result the Tribunal found that Mr Janus was not engaged in an activity that he was reasonably expected to undertake by his employer.

Balancing Act

Employers are in the difficult position of balancing the merits and benefits of flexible working arrangements, including working from home, and an increasing exposure to liability.

This is further compounded by provisions under the Fair Work Act 2009 (Cth) which give employees, with carer responsibilities, the statutory right to request flexible working arrangements. Employers may only refuse such a request on “reasonable business grounds”. There are also statutory rights enshrined in equal opportunity and anti-discrimination legislation, which may give rise to a right of employee’s to challenge an employer’s refusal to allow flexible working arrangements.

Taking Precautions

Should an employer adhere to a request for flexible working arrangements, including working from home, they should carefully consider and document the process, including the following factors:

  • Consider each request for work from home arrangements on a case by case basis, balancing the necessity, practicality and liability for such a decision.
  • Document the decision making process, including arrangements agreed between employer and employee.
  • Ensure that there is a regular review and assessment process for the work from home arrangements – decisions from this review should be rewritten and acknowledged by both the employer and employee. 
  • Implement a risk assessment of the home that is to be used as the “workplace”, including the assessment and addressing of risks and hazards – this may include defining the area within the home as a “workplace”.
  • Implement an organisational wide policy setting out minimum guidelines and responsibilities for work from home arrangements – this may be useful in applying to irregular work from home situations.  

 

Conclusion

Employers concerned with the decision in the Hargreaves and Telstra Corporation decision can take comfort in the fact that the decision turned on the particular circumstances of Ms Hargreaves’ working arrangements. The adjudicator’s discretion is evidenced in the differing outcomes from the Ledwidge and Janus decisions.

The revised workplace health and safety regime in Queensland requires that employers have “a mind for safety” when making decisions. Prudent, reasonable, diligent and considered employers should be able to engage in a process of negotiation with their employee to allow flexible working arrangements while ensuring that the employer is not unduly exposed to liability.

Health and safety should be a concern for all employers and in all workplaces; even when the workplace is at an employee’s home.