NSCA Foundation

Home is where the work is


By Jackson Inglis* and Liliana Schultz^
Monday, 15 July, 2019



Home is where the work is

Flexible working arrangements can benefit both employers and employees. But it’s important to have appropriate policies in place to keep your employee — and your business — safe.

As the world of work is constantly evolving and changing, employees are increasingly working remotely and the four walls of the traditional workplace are evaporating. Flexible working arrangements are becoming a feature of how we work and, in many ways, an expectation of the modern Australian employment relationship. Improvements in technology mean that working remotely and from home is more doable and manageable than ever before.

It is also increasingly evident that Australian employers are choosing to accommodate flexible working arrangements. For example, in 2017 the NSW Public Service Commission produced the ‘Make Flexibility Count: Strategic Framework for the NSW Government Sector’ report, which demonstrates a novel and progressive policy commitment to make all roles in the NSW Government sector flexible on the basis of “if not, why not” by the end of 2019. Additionally, the NSW Government has committed to providing flexible work hubs closer to where people live (outside of the Sydney CBD) that provide employees the option to work from different office locations and closer to home and schools.

In 2015, the Australian Bureau of Statistics revealed that almost a third of the Australian workforce regularly worked from home. It is timely to revisit the basic rules that employers should remember when considering (and approving) requests from their employees to work from home.

Do the benefits outweigh the challenges?

Flexible working arrangements can present real benefits to businesses. Studies indicate the benefits attributable to flexible work include increased productivity and morale amongst existing employees, a heightened ability to attract and retain talent, and a reduction in the huge costs associated with absenteeism.

However, potential challenges associated with flexible working arrangements, such as communicating with employees working remotely and managing risks to their health and safety, should not be forgotten. Employers should take steps to eliminate, avoid or manage these risks.

From an employment perspective

Section 65 of the Fair Work Act 2009 (Cth) (FW Act) gives certain employees the right to request flexible working arrangements. This can include flexible arrangements regarding the hours they work, patterns and location of where they work.

An employer who receives such a request must provide a written response within 21 days. If the employee is covered by a Modern Award, an employer must first discuss the request with their employee to try to reach an agreement about changes to the employee’s working arrangements. Employers are only able to refuse a request on “reasonable business grounds”. For example, if the change sought would be impractical to implement or would negatively impact other employees, then there may be grounds to refuse the request. There is no definitive list of what constitutes “reasonable business grounds”. The assessment needs to be made on a case-by-case basis.

If an employee is dissatisfied with a decision to refuse their request for flexible working arrangements, it is open to the employee to bring a claim against their employer alleging discrimination or a breach of the general protections provisions in the FW Act. It is therefore important to document the steps taken and process followed, including the employer’s consideration of the issues and consultation with the employee.

Whilst the FW Act specifies the groups that can request flexible working arrangements, there is nothing stopping any employee from approaching their employer with such a request. Employers should document and manage these requests carefully, and any resulting arrangements, by implementing relevant working from home policies and procedures and communicating expectations with employees. For example, it would be good practice to build into an agreed arrangement for a regular review to be conducted of the arrangement, to make sure it remains workable and safe.

From a safety perspective

When an employee works from home, an employer still has non-delegable work health and safety (WHS) duties, and obligations to an employee to discharge. This includes the broad duty imposed by the model WHS laws to do what is reasonably practicable to provide a working environment that is safe and without risks to health and safety. More specifically, the model Work Health and Safety Regulations impose an obligation on a person conducting a business or undertaking to manage the risks associated with remote or isolated work, including effective communication with the worker who is carrying out this work.1

This duty is qualified by ‘what is reasonably practicable’. While the duty would not be diminished, it flows that the level of control an employer can have over an employee’s health and safety is arguably greater when the employee is working from the employer’s premises, rather than from their home. There are a number of steps an employer can take to minimise the risk of harm to an employee working remotely or from home, particularly if this is to be a frequent arrangement, as opposed to ad hoc.

Steps employers can take

Employers should conduct a thorough risk assessment of the worker’s intended home workspace to ensure they will be working in an environment that does not contain any risks to health and safety. Ideally, an employee should not conduct their own risk assessment because they usually do not possess the skills or expertise to do so and there is a risk of unconscious bias that their home workplace, or parts or areas within it, is safe.

Current best practice is for employers to clearly document any working from home arrangements and ensure they include the following detail:

  • The hours the employee can and should work (including agreed regular breaks).
  • The location the employee will work, noting permission to work at home does not extend to other places.
  • What work the employee will be performing.
  • What equipment the employee will use and who will provide the equipment.
  • Expectations around communication with their employer (including how often contact is expected, the method of contact and how safety issues will be reported).
  • Recommendations addressed from the risk assessment conducted on the employee’s work environment, proposed frequency of follow-up audits and who will be responsible for conducting and reviewing the assessments.
  • Workers’ compensation and other insurance arrangements.
     

Except in very specific circumstances, employers should resist the temptation to outline all the activities that are and are not acceptable for workers to perform while they are working from home as this can expose them to liability, if something so prescriptive does not take all risk factors into account. If an employee sustains an injury while working from home, the courts will be required to assess whether the injury arose out of, or in the course of, the employee’s employment. Building some flexibility into the arrangements may, depending on the circumstances, be beneficial.

In Ziebarth v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 121 an employer was held liable for an injury sustained by an employee working from home, as the employer had expressly encouraged the actions that led to the injury. Ziebarth injured his back when he got out of the shower at home to answer his work mobile phone and slipped on the wet bathroom tiles. Evidence revealed Zeibarth’s manager had chastised him for missing phone calls in the past and Zeibarth felt he was obliged to answer his phone every time it rang. In these circumstances that was an unrealistic expectation, and the employer was held liable.

Takeaway

Flexible working arrangements can benefit both employers and employees. By establishing policies that set clear expectations for flexible working and documenting working from home arrangements, employers can embrace the positives that workplace flexibilities have proven to be there for both sides of the relationship.

Reference

1. Work Health and Safety Regulations 2011 (Cth) regulation 48.

*Jackson Inglis is a Partner and ^Liliana Schultz a Lawyer with Sparke Helmore.

Image credit: ©stock.adobe.com/au/Andrey Popov

NSCA Foundation is a member based, non-profit organisation working together with members to improve workplace health and safety throughout Australia. For more information and membership details click here
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