Saturday, 15 September 2012

Workplace flexibility - Working from Home

Employers considering providing employees with the opportunity to experience workplace flexibility and work from home may wonder what risks they may face. This is particularly so after the decision in Hargreaves v Telstra.

In that case the Administrative Appeals Tribunal (“AAT”) found that injuries suffered by Ms Hargreaves while she was working from home were sustained in the course of employment and so compensable under the relevant Commonwealth legislation.

Ms Hargreaves was injured on a break from working when she fell down the stairs at her home. She later developed a psychological injury as a result of what she described as Telstra’s unhelpful response to her compensation claim. The AAT found in her favour in that the psychological injury arose from issues regarding her return to work plans, which included Telstra’s insistence that she return to work in the city office, contrary to advice from her doctors. This case demonstrates the extent of potential workers compensation liability faced by employers in relation to working from home.

It also highlights the difficult balancing act employers face. On the one hand they may have to consider a request for workplace flexibility options under the Fair Work Act 2009 (such as working from home) and balance this against OHS and worker’s compensation risks.
Employers may only refuse such a request for workplace flexibility options on reasonable business grounds.

What are reasonable business grounds?

 The factors relevant in defining ‘reasonable business grounds’ are listed below? These are taken from the Explanatory Memorandum to the Fair Work Bill.
  • the effect on the workplace and the employer‘s business of approving the request, including the financial impact of doing so and the impact on efficiency, productivity and customer service;
  • the inability to organise work among existing staff;
  • the inability to recruit a replacement employee;
  • the practicality or otherwise of the arrangements that may need to be put in place to accommodate the employee‘s request.
Employers may argue, as a result of the Hargreaves decision, that the impact of claims on the employer’s claims history for workers’ compensation premiums, will allow then to refuse the request. Whether this argument would succeed is yet to be tested.

What about OHS risks?
The Model Work Health and Safety Act (“Act”) due to commence on 1 January 2012 defines workplace very broadly as “a place where work is carried out for a business and includes any place where a worker goes, or is likely to go, while at work.” This would include an employee’s house. What should an employer do about these risks? The new Act requires that they take all “reasonably practicable steps” to reduce risk of injury. In addition, Part 3 of the Model Work Health and Safety Regulations imposes specific obligations for ensuring the safety of the “general working environment.”
If you have a Working from Home Policy, it should be reviewed to ensure that it covers risk assessment for working from home that addresses each of the risks identified in the proposed new Regulations to the Act(for example, lighting, ventilation, heating and ergonomics).

Tips for employers?
Employers should:
  • implement a Working from Home Policy if the employer wishes to offer it as an option;
  • have in place a policy to respond to all requests for workplace flexibility;
  • where agreement is reached, document it;
  • where a request is refused, ensure a written response to the employee within 21 days of request as provided under the Fair Work;
  • ensure a risk assessment of the home working environment is completed before the arrangement commences. Consider whether a self-assessment is adequate; and
  • define the “working area” in any agreement to work from home.


dorothy agustin said...

I'm a retired writer and now working being online writing jobs from home for almost two years and It really help me to survive everyday.

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