In brief

Central to the government's strategy to flatten the curve of the COVID-19 pandemic has been the strict enforcement of social distancing and self-quarantine measures.  

With exposure to COVID-19 categorised as a workplace hazard and as a compensable workplace injury for the purpose of Work health and safety and Workers' Compensation legislation (we understand that claims have already been made in New South Wales and Victoria), employers have rapidly moved their workforces out of workplaces, in compliance with government directions, to manage the risk of infection.  

This strategy, and the proactive response from Australia's business community, seems to be paying dividends as COVID-19 infection rates are easing according to the latest data. However the cost of these measures to Australian business is also quite clear. 

What is less obvious are the extensive (and expensive) measures Australian business have taken to support their workforces to continue to work. According to recent data, for 80% of Australian businesses it is business as usual (if not somewhat less usual).

While many businesses already accommodate work from home arrangements, for others the pandemic has triggered an urgent need to establish, formalise or finesse work from home policies and practice. 

The purpose of this article is to highlight: 

  1. the legal obligations of employers to people who are working from home;  

  2. strategies to assist employers implement safe systems for working from home; and 

  3. the benefits and practical challenges of working from home.

Transitioning from office to home

Working from home is not possible or practicable for all workers. Forward facing, direct contact client roles are unlikely transferrable to a home office.
  
However, with the emergence of flexible technology platforms, most office based occupations which support industries including health care, community and aged care, retail, trades, transport and logistics, mining, construction and property, may, with planning and support, be transferred from the workplace to the home office. 

Where workplaces have moved within days to implement safe and effective work from home arrangements, they may not have had much opportunity to consider the 'how' of implementing work from home arrangements in compliance industrial, safety and other obligations. 

Legal Obligations 

Work Health and Safety Laws

Duty of Care

Work health and safety legislation throughout Australia requires a person conducting a business or undertaking (PCBU) to ensure, so far as is reasonably practicable, the health and safety of -

(a) workers engaged, or caused to be engaged by the person, and
(b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking.

Further, the PCBU must also ensure the health and safety or other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

A worker is an employee, outworker, contractor, labour hire worker, apprentice, work experience student, visitor or volunteer.

This primary duty requires an employer to provide competent staff, adequate materials, proper systems of work and effective oversight and enforcement (see Wilson and Clyde Coal Co Ltd v English [1938] AC 57). Any implemented risk management system must be monitored, enforced and reviewed periodically.

Place of Work

The duty to provide a safe 'place of work' extends to premises outside office walls including places where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.

Wherever a worker is undertaking work for the PCBU, reasonably practicable controls must be in place to manage the worker's health and safety. This will apply where the worker is working at home.

Reasonably practicable

The PCBU's duty of care to maintain a safe workplace and eliminate risks is not unqualified and is subject to what is considered 'reasonably practicable'.

If identified risks cannot be eliminated altogether, the PCBU must minimise those risks so far as is reasonably practicable (see section 17 of the Work Health and Safety Act 2011 (Qld)). The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate it, or minimise it. (see Safework NSW v Austral Brick Co Pty Ltd [2018] NSWDC 387).

Failure to ensure a safe home work environment may expose an employee to injury or harm. This can attract penalties for breach of the employer's obligations under WHS laws and possibly attract claims for personal injury under workers' compensation laws.

Steps for Employers or PCBU's to take

It is recommended that a PCBU or employer takes steps to have each worker, who is working at home, conduct a working at home checklist to enable adequate consultation, discussions and supervision to ensure reasonably practicable steps are in place to manage the worker's health and safety whilst at home.

Due to the current Government Health Directions, it is not practicable for a PCBU or employer to attend each worker's home and assess their work at home environment. The provision of assessment tools, resources and information to the worker will assist to meet the WHS obligations of worker safety whilst "working at home."

Workers are also required to take reasonable steps to care for their own health and safety, not adversely impact upon the safety of others and follow any reasonable instruction, policy or procedure of the PCBU or employer, that they have been informed of, regarding health and safety.

Workers' Compensation Legislation 

Under workers' compensation legislation a worker may recover compensation for injuries arising out of or in the course of employment and for work related diseases.1 In Re Hargreaves and Telstra Corporation Ltd,2 a Commonwealth employer was held to be liable for injuries sustained by an employee who fell down the stairs (twice) while working from home. However, it must be noted that workers' compensation legislation in each State and Territory operates differently. 

To manage this risk employers should take necessary steps to identify and reasonably manage 'at home' risks. The completion of the work at home checklist alongside consultation and discussions will assist workers to achieve the safety standards required for their work at home spaces.

Fair Work Act 2009 (Cth) (FWA), Industrial Instruments and Contracts 

Employers and employees are bound by provisions contained within industrial instruments, policies or employment contracts that govern the management of flexible work arrangements. It is important to consider these provisions in light of the emerging Pandemic. 

Employees must still take breaks and should not be required to work unreasonable additional hours. Time recording might be required to ensure the employer understands what work is being done (and when) so that proper payment can be made.

During the crisis temporary changes are being made to several awards including the Clerks - Private Sector Award, to allow for increased flexibility around some industrial requirements. 

At the same time employers must take steps to understand what work is being done and when so that industrial obligations, time keeping records and proper payment can be made. 

Further when an employee is unwell, or caring for household members who are unwell it might be unlawful for an employer to require them to work, when they are entitled to take accrued personal leave. 

To manage the risk of non-compliance with industrial provisions employers need to take steps to understand what work is being done and when, and that an employee is fit and able to undertake those duties.

Surveillance

Part of that oversight might include surveillance of IT systems. Different laws apply in regards to surveillance in different states. In some states surveillance is not permitted without letting the employee know it is happening. For this reason employers should take steps to ensure that where they are monitoring an employee's use of IT assets for example that they comply with legal requirements around surveillance. 

At the same time, where employees are at home, using an employer's IT assets, it is important that an employer confirms its expectations around 'proper use' of those resources. Just because an employee is working from home does not mean that they can access inappropriate web sites or use assets in breach of an employer's IT policies.  

Public Health Laws 

Under the Biosecurity Act 2015 (Cth) and related State and Territory Public Health laws, it is mandatory for certain categories of Australians to self-quarantine at home for 14 days. All jurisdictions impose a financial penalty (up to $63,000) and or imprisonment (up to five years) for those who fail to comply with public health directives. 

Employers should ask employees, subject to privacy law requirements, to declare their fitness for work, and any COVID-19 diagnosis in their household so as to avoid asking an employee to do anything which might be in breach of the quarantine requirements.  

Information Privacy Laws 

Common law, contractual and statutory duties oblige employers and employees to protect private and confidential information. 

The common law duty of confidence requires all confidential information belonging to clients to be kept strictly confidential and not to be used to the detriment of the employer or client.

Section 183 of the Corporations Act 2001 (Cth) provides that a person who obtains information because they are, or have been, a director or other officer or employee of a corporation must not improperly use that information to gain advantage or cause detriment to the corporation.

Cybersecurity and physical security measures are essential in the home work environment to eradicate any unauthorised breaches to information privacy.  

Reimbursements from the Australian Taxation Office (ATO)  

Reimbursements 

Employees who work from home may be eligible to claim on tax a proportion of work related expenses. The ATO sets out three categories of employees who work from home which governs a person's eligibility for and extent of reimbursements. In circumstances where the home in not the principal place of business the following expenses may be claimable:

  • Proportion of running expenses (ie electricity, gas, air conditioning and decline in value of office plant and equipment)
  • Phone and internet costs if the employee paid for expenses and keeps records.3

How to get the Workforce 'Home Ready' 

Under normal circumstances, a high level of consultation and communication might be expected before an employee commences working from home. 

However, due to the rapid escalation of the risks posed by COVID-19, discussions and plans surrounding remote arrangements may have been implemented quickly, leaving little opportunity for managers and human resource personnel to implement (or develop) policies or to perform rigorous assessments of every home work environment.

In the circumstances businesses need only do what is reasonably practicable to manage risk. Where work from home arrangements have been put in place quickly in response to COVID-19 and government directions, what is considered reasonably practicable today will be different to what was considered reasonable this time last year.

That said, employers still must take reasonable steps to ensure safety. Such steps might include asking employees to conduct a self-assessment of their home work space, entering into contracts or agreements about what they will and won't do in that space, setting time limits for the arrangement and refreshing employees in regards to code of conduct issues, surveillance, and IT policies. 

Such processes should also take into consideration how the employer will ensure the safety of their information, assets, and confidential information. For this reason employers should ensure a robust security policy exists for the home office which addresses:

  • Safe storage of hard copy files containing confidential information including locks on doors or filing cabinets;

  • Ensuring cybersecurity measures are operational including firewalls, computer and phone passwords and secure cloud storage; and 

  • Ensuring audio and visual elements of teleconferencing is not on display to others. 

Work from home agreement

To record the terms of work from home arrangements an employer might record their expectation and important details in an agreement, record a safe work check list, confirm communication arrangements and a time at which to review the agreement. For example:

 Work Health & Safety - Work at Home Checklist 

Home work environment 

  • Is there clear access to and from the area? 

  • Is the area free from slip/trip hazards? 

  • Is there adequate lighting in the work area?

  • Is there an operational smoke detector?

  • Is there a safety switch in the electrical power box

  • Have electrical cords for your home workspace use been checked for any abrasions or 

  • breakages? 

  • Is there a need to lift any heavy/awkward items?

  • Is there safe access for visitors if required? 

Chair 

  • Is the chair in good working condition? 

Desk/Keyboard 

  • Is the desk or table large enough for tasks? 

  • Are your wrists in a neutral position whilst keying (i.e.. Wrist flat?) 

  • Can you sit close to the desk without impediment? 

  • Are items used frequently within easy reach? 

  • Is mouse at the same level of the keyboard and close by? 

  • Is a document holder required? 

  • Is there plenty of room under your desk for stretching out your feet and legs? 

  • Is the screen at approximately arms distance directly in front of you? 

  • Is the top of the monitor at eye level, so that your neck remains in a neutral position? 

  • If using a laptop, have you raised it? 

  • Do you sit in an upright position while working at the computer? 

  • ​Do you have a speaker phone available on your home phone or mobile to use during long phone conversations or when you are required to type/write during phone conversations? 

Employee details 
Name: 
Assessment address: 
Signature: 
Date: 


Copies of these agreements and guides should be kept on an employee's personnel file and should be reviewed regularly as long as the agreement is in place.

​Employers must closely monitor official notifications issued by the Australian Government to ensure work policies and systems remain aligned with current COVID-19 recommendations. 

This includes communicating clearly and often with employees who are working remotely about quarantine requirements, domestic and international border closures, social distancing requirements and their own physical and mental health.

We recommend the following sources for official announcements:

Benefits and Challenges of working from home 

The positive effects of remote working arrangements are often assumed rather than measured. The lack of reliable evidence based data has attracted criticism from some commentators.4 That said, business has adapted quickly to the Government's direction to manage the risk of infection.  Many businesses have now had a couple of weeks' to reflect on the change.

Some of the benefits/challenges which may be emerging include:

BENEFITS5

CHALLENGES

  • increased flexibility for people with family or carer responsibilities

  • improved employee engagement, satisfaction and retention

  • saving time on commuting and getting ready for work

  • better work life balance

  • decreased absenteeism

  • improved morale and productivity

  • improved rates of staff attraction and retention

  • less disruptions from colleagues and more economical use of time

 
  • managing employee motivation, productivity and performance

  • accessing training sessions and team meetings

  • meeting client expectations

  • communicating effectively between team members

  • connectivity and IT issues (cybersecurity)

  • managing workloads

  • ensuring protection of confidential information

  • difficulties with transitioning back to the office environment

 

Maintaining good working relationships from afar

Employers should be taking steps to monitor how effectively work from home arrangements are working and take proactive steps to manage risk to the work, including efficiency, productivity and quality and most importantly risk to people.  

Where employees live alone, or are trying to manage the demands of family and work in the same space without the support of family and friends they may be at risk of psychological injury.  Employers should take special care to check in with employees on how they are coping with working from home. For example, employers may consider adopting:

  • A buddy system where an employee is contacted regularly by a buddy;

  • Hold transparent discussions with the workforce about business sustainability and job security including what paid and unpaid leave entitlements are available to employees;

  • Hold private discussions with and support employees who may have contracted or been exposed COVID-19 and are required to self-isolate; 

  • Depending on Government restrictions consider a roster system where certain team members attend the actual work office on specific work days; and 

  • Ensure employees have access to Employee Assist Programs so they can discuss any issues confidentially with a trained counsellor.

Where to from here?

Epidemiologists warn that we are still in the infancy of the Pandemic's trajectory. Some estimate that COVID-19 transmission mitigation strategies may be in place for six months or longer.

The silver lining is the adaptability demonstrated by Australian businesses in response to the challenges COVID-19 has posed and the promising effect that compliance with Government directions appears to be having on COVID-19 transmission. 

While working from home arrangements can cause inconvenience, this forced change might also bring exciting opportunities for employers and employees to test resourcing from a personnel, property and IT perspective and to assess the effectiveness of this way of working, the impact on team cohesiveness and the resilience of your business. 

_________________________________

[1] Safety, Rehabilitation and Compensation Act 1988 (Cth) and Workers' Compensation and Rehabilitation Act 2003 (Qld). 
[2] (2011) 123 ALD 100; [2011] AATA 417.
[3] Australian Government Australian Taxation Office, Employees Working from Home (accessed 23 March 2020) <https://www.ato.gov.au/uploadedFiles/Content/IND/Downloads/Working-from-home.pdf>.
[4] Alan Felsted, 'Assessing the growth of remote working and its consequences for effort, well-being and work-life balance' (2017) 32 New Technology, Work and Employment 3.
[5] Belinda Winter and Luke Keane, Flexible and Alternative working arrangements (2011) 17(7) ELBA; Sarah Lynch, Why Working from Home Is a "Future Looking Technology" (22 June 2017) Stanford Business Graduate School <https://www.gsb.stanford.edu/insights/why-working-home-future-looking-technology>

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.