MDC Legal Director Mark Cox and Law Clerk Miette Xamon discuss the legal challenges workplaces should be aware of when employees work from home. The Administrative Appeals Tribunal in a 2011 decision involving a Telstra employee – who twice fell down the stairs while working from home – found that their employer was in fact liable for injuries sustained in the falls, they write.
Mark will chair the Employment Law Round-up Conference in March, while MDC Legal Senior Associate Joanna Knoth will give a presentation on Managing Ill and Injured Workers.
With the flexibility of information technology, working from home is easier than ever, and more popular for many, being associated with greater overall job satisfaction. The benefits may be better work-life balance, more time spent with family and friends, and better management of parental and carer responsibilities. 16.4% of Australians now work some of their usual work hours from home, with the highest percentage being women aged 35-44, particularly in professional or management roles.
But this raises some challenges for employers, including regarding their workplace liability, and also questions associated with managing efficiencies, ensuring data security, and protection of privacy, intellectual property and confidential information.
Under the Occupational Safety and Health Act (‘OSH’ Act), employers are obliged to provide and maintain a working environment in which employees and not exposed to hazards. A ‘workplace’ under the OSH Actmeans any place where employees work or are likely to be in the course of their work. Similarly, under the Safety, Compensation and Rehabilitation Act 1988 (Cth) a ‘place of work’ includes any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment. This broad definition includes working from home. The same duties not to expose workers to hazards, and the duty to provide information, instruction and training, extend to employees working from home. Employees have their own duties under the OSH Act to take reasonable care in ensuring their own health and safety, which extend to working from home as well.
A 2011 case involving a Telstra employee who twice fell down the stairs while working from home found that their employer was in fact liable for injuries sustained in the falls. The Administrative Appeal Tribunal established that falling down the stairs arose in the course of employment as the employee was working from home with permission. An employer’s duty to provide a safe workplace extends to working from home, and if that environment contains hazards, the employer will likely bear the legal responsibility.
Not all work from home injuries have been successfully compensated. ABC’s Catalyst presenter Maryanne Demasi lodged a workers’ compensation claim for an injury that occurred while going for a run during a morning break from work, on that day she was working from home. Ms Demasi argued that the injury occurred ‘during an ordinary recess’ from her employment, which was contemplated by the legislation. The Administrative Appeal Tribunal disagreed. While going for a run on one’s lunchbreak could be contemplated as ‘during an ordinary recess’, taking a break for the specific purpose of going for a run at any random time of the day is outside of this category.
Before authorising employees working from home, employers should speak with their insurance brokers about the reach of their workers compensation insurance, and they may need to assess the employees home for safety standards.
Employers also need to ensure proper measures are in place to ensure their confidential information and intellectual property is not at risk and that approved, secure IT protocols are in place.
All of those measures should be reflected in a clear ‘Working from Home’ policy to ensure safe and secure workplace practices and systems extend beyond the office to the home working environment. When employees know the appropriate systems and precautions to adopt, the possibility of a safety incident or security breach will be reduced.
The same IT protocols and ergonomic standards applied to workplace office set-ups should apply to home office-setups, as should any standards for particular equipment used.
Employees should be advised of possible risks at their home, just as is routine for office workplace inductions. Existing policies, such as privacy and discrimination policies, which are often forgotten, should be updated to account for the possible issues that arise out of working from home arrangements.
Mark Cox (BA LLB Hons, University of Melbourne) leads the specialist employment law team at MDC Legal. He has over 19 years in practice, mainly in industrial, workplace and employment law. In previous lives he was Associate to Chief Justice David Malcolm, worked in a commercial litigation firm, then as a senior associate of a national firm, and as Principal Solicitor of the Employment Law Centre. Mark is a well-regarded practitioner in workplace relations law, named as a “leading lawyer” in Doyle’s Guide 2014, 2015, 2016, and “market leader” in 2017, 2018. In addition to providing strategic and front end advice and implementing employment contracts, policies and procedures, Mark has conducted litigation and acted as counsel in several jurisdictions on “both sides of the fence” in a wide variety of matters, including injunctions and restraint of trade matters, protected industrial action, contractual claims, general protections and unfair dismissal claims, and bullying and discrimination claims. Contact Mark at [email protected] or connect via LinkedIn.
 Occupational Safety and Health Act 1984 (WA) s 19.
 Occupational Safety and Health Act 1984 (WA) s 20.
 Hargreaves v Telstra Corporation Ltd (2011) 123 ALD 100.
 Demasi v Comcare (Compensation)  AATA 644.