WHS Law on “Working From Home”
Weekly WHS Article 23rd August 2022
The last three years have seen major changes in how businesses conduct their operations in Australia. In July 2021, the Australian Institute of Family Studies released their survey that revealed that 67% of employed Australians were sometimes or always working from home compared to 42% working from home prior to Covid (see ref 1 below).
The survey also revealed that 49% of parents working from home were struggling with their work requirements and caregiving for their children. Among parents surveyed 22% were “always” or “often” actively caring for children while working, while 15% of parents were passively doing so while working.
In August 2022 the Australian HR Institute released a survey they conducted of “1,177 HR professional to explore the employers’ mindset on hybrid working, flexible working practices, and productivity in 2022”. One of the many key responses in this survey showed that only 4% of the organisations surveyed required employees to work a full working week of 5 days in the office (see ref 2 below).
It does appear that working from home is going to stay with us for the foreseeable future.
A Workers’ Home can be a Workplace
The definition of a workplace per Section 8 of the NSW WHS Act is:
“… a place 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.”
Therefore, a person’s home meets the definition of “workplace” if the person is working from home. Staff working from home have to comply with the worker requirements in the WHS Act Work and PCBUs have to comply with their duties and responsibilities for the health and safety of their workers.
PCBU’s Primary Duty
A Person Conducting a Business or Undertaking (PCBU) has the primary duty to establish a safe and healthy working environment for all staff under its employ. Per Section 19 of NSW WHS Act:
“A person conducting a business or undertaking must 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 [PCBU], while the workers are at work in the business or undertaking.”
On the other hand, Section 28 of the NSW WHS Act states that every worker in the employ of a PCBU must:
“(a) take reasonable care for his or her own health and safety, and
(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and
(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and
(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.”
PCBUs must ensure that they and their workers are in compliance with WHS law when workers are working from home. The first risk management step is to identify any reasonably foreseeable hazards in the work area at the worker’s home. This not only includes ergonomic risks, but also includes potential psychosocial hazards. (See Ref 3 below for a link to the meaning of psychosocial and examples of psychosocial hazards).
In many cases it may not be practical or even desirable to have management persons from work come to a worker’s home to identify hazards, assess the risks, and determine how to eliminate or reduce those risks (See WHS Regulation 35).
To ease these concerns businesses could create a tool such as a Working from Home Assessment Checklist. The worker could fill in the form, perhaps also do a risk assessment themselves. The PCBU could then provide any risk controls or assistance that will enable that worker to work from home without risks to health and safety.
There is no “one size fits all” solution to working from home. If you would like help to create or update such a checklist or you would like to know more about the legal requirements that apply to work from home scenarios, we encourage you to contact any one of our WHS consultants by phone or email today.
1. Families in Australia Survey: Towards COVID Normal. Published by The Australian Institute of Family Studies. URL: https://aifs.gov.au/media/two-thirds-australians-are-working-home
2. Australian HR Institute Survey
3. Know Your Psychosocial Hazards at Work