17 September, 2016
What is the "workplace" these days anyway?
Employers are facing increasing challenges to the management of their workforces in this era of innovation and flexibility. Our August issue of Fwd:Thinking dealt with a range of issues that may change the face of the workforce in the coming years.
One such challenge is the interaction between flexible working arrangements, work health and safety obligations and entitlements to workers' compensation. These are areas where prescriptive legislative regimes are in place primarily based on the traditional concept of a "workplace". The challenge in this area is more relevant than ever in light of Australian Bureau of Statistics figures released in August 2016 that suggest that 3.5 million people employed
in Australia regularly work from home in their main job or business.
A recent decision of the Administrative Appeals Tribunal on workers' compensation entitlements provides some comfort that courts and tribunals will be able to take a sensible approach to cases involving employees who have agile work arrangements.
In Demasi and Comcare (Compensation) [2016] AATA 664, the Tribunal was required to consider whether an employee's hip injury, sustained whilst out for a run at 9:30 am on a day she was working from home, occurred while she was temporarily absent from her "place of work". The employee argued that given the flexible nature of modern work environments, an employee's place of work is any location where she or he carries out their work – such as answering a work phone call or responding to an email, as she had done before heading out on her run.
The Tribunal rejected the employer's argument that the lack of formality around the arrangement meant that the employee's home did not constitute her "place of work". DP Frost found that the question was "…not whether Ms Demasi's practice complied with the ABC's formal procedures, but rather the practical reality of the circumstances … the simple fact is that the employer and the employee had an arrangement in place that was well understood by both of them, even if it was not in strict compliance with the formal requirements".
Ultimately the employee's workers' compensation claim was unsuccessful, as DP Frost found that she had not injured herself during an "ordinary recess" as required under the Act. Whilst going for a run during her lunch break would have met the test, taking a break for the specific purpose of going for a run, at any random time of the day, was not considered to be a recess of the kind contemplated by the workers' compensation legislation.
What you need to know
We are well past the time where the "workplace" can be easily identified as the employer's office or a fixed physical location where the employer carries on business. Many employees travel regularly between different locations to provide their services, whilst office workers in the private and public sectors are increasingly taking advantage of technological advances and flexible work arrangements to work from home or other locations.
What the "workplace" is for any particular employee will depend on the nature of the employment, the role of the employee and the particular circumstances. It may be broader under some legislative schemes than others and will generally be more encompassing for the purposes of work health and safety legislation, where it is generally defined as including any place where a worker goes, or is likely to be, while at work. That said, it is important to remember that the obligation on WHS duty holders under harmonised laws is to discharge their duty to the extent to which they have the capacity to influence and control the matter.
Employers should ensure, so far as possible, that they are aware of and understand the agile working arrangements of their employees. An employer will not escape liability for an injury sustained during the course of employment simply because the employee's agile work arrangements may not have been formally documented or are not undertaken in accordance with a formal policy.
Fear of the application of workers' compensation and work health and safety legislation should not deter employers from pursuing agile work arrangements which can bring numerous benefits for employers and employees alike. Employers should openly explore the options available, making sure they give careful consideration of how to meet their obligations towards employees who work agilely.
MAKING THE CASE: Insights from Geoff Giudice
The AAT was required to decide whether a Commonwealth employee who injured herself while on a run on a day on which she was working from home was covered by the Safety, Rehabilitation and Compensation Act 1988 (Cth).
While the employee's home was found to be her "workplace" under the legislation, her claim failed because the injury did not occur while she was "temporarily absent . . . during an ordinary recess in . . . employment". An assumption underlying this interpretation is that employees take breaks at fixed times or of fixed duration during the working day. That assumption has no or limited application to an employee who is working from home. To illustrate the difference, if the employee had been working in her office rather than at home and sustained an injury during a run at lunch time, her injury would have been compensable. It should be noted, however, that where Commonwealth employment is not involved, the relevant compensation legislation may operate quite differently.
For further information, please contact:
Marie-Claire Foley, Partner, Ashurst
marie-claire.foley@ashurst.com
