Sharp, Gemma --- "Employee duties under the model WHS laws" [2022] PrecedentAULA 64; (2022) 173 Precedent 24

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EMPLOYEE DUTIES UNDER THE MODEL WHS LAWS

By Gemma Sharp

Over the past few years, Australian workplaces have transformed. The changes began in early 2020, when government measures to control the risks posed by COVID-19 resulted in lockdowns across Australia, and businesses were, where possible, forced to supercharge the rollout of working from home arrangements. That period has subsequently been dubbed ‘the great work-from-home-experiment’.^[1]

Prior to the pandemic, a significant number of managers across Australia’s private and public sectors reported significant resistance to allowing workers to enter into working from home arrangements for fear of a general decrease in performance and productivity.^[2] However, COVID-19 lockdowns forced a change in approach by those who had previously shunned working from home arrangements, as they needed – for the survival of their businesses – to rapidly transition employees to work from home. Those who had previously implemented working from home arrangements needed to expand those arrangements to a larger number of workers.

Due to the speed of the transition, the safety systems implemented by employers were often rudimentary, lacking the controls necessary to manage workplace risks to the degree required under the relevant work health and safety laws. Initially, employers largely relied on workers to exercise a degree of common sense to implement work practices that did not place their health and safety at risk.

Three years on, working from home arrangements have become a benefit expected by many workers and one that, in a tight labour market, many employers need to offer in order to recruit and retain staff. A recent study conducted by the National Bureau of Economic Research in the United States found that 35 per cent of Australians would quit their job or start looking for another if their employer forced them to return to the office full time.^[3] As a result, hybrid working arrangements are on the rise and regular time working from home each week is likely to become a permanent fixture in the Australian workplace landscape.

With this in mind, should employers be taking steps to implement more sophisticated methods to manage worker safety and control working from home risks, or are there worker duties under the model WHS laws^[4] on which employers can rely? And how realistic and feasible is it for employers to take more active steps to implement systems to ensure worker health and safety when they do not have physical control of home workspaces?

Workers do hold a degree of accountability for their own health and safety; it is not a burden that falls solely on employers.^[5] In transitioning to the model WHS laws, it was recognised that Australian jurisdictions needed to implement a balanced framework to secure health and safety.^[6]

This article considers the duties on workers that exist under the model WHS laws and the extent to which they can be relied on:

• for workers to be held accountable for their own health and safety; or

• for employers to rely on in circumstances where workers are injured while performing work from home.

WHS DUTIES IN A WORKING FROM HOME CONTEXT

Worker duties

The model WHS laws, which now apply in all states and territories except Victoria, impose four duties on workers. Those are to:

‘(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 workers 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’.^[7]

While the model WHS laws have not been adopted in Victoria, similar duties exist for workers under s25 of the Occupational Health and Safety Act 2004 (Vic);^[8] however, those laws also expressly prohibit the intentional or reckless interference or misuse of things provided within the workplace that could jeopardise health and safety.

The duty of care imposed on workers under the model WHS laws is recognised as being subject to a consideration of what is reasonable; that is, necessarily proportionate to the control a worker is able to exercise over their work activities and work environment.^[9] In a working from home context, a worker has a high degree of control over their work environment. Therefore, to an extent, the duty imposed on a worker may be higher than in a work environment where they have limited control.

The duty under s28(a) of the Model Work Health and Safety Bill (Cth) (known as the Model WHS Act) requires a worker to take personal responsibility for their own health and safety, and therefore to take positive steps to perform work in a way that does not jeopardise their health and safety. It is a duty that was created under the model WHS laws in appreciation of the expectation that safety is everyone’s responsibility. The duty is also in place to address reckless or wilful conduct of a worker, to account for those instances where a worker has sustained harm as a result of engaging in conduct that an employer would not have reasonably foreseen and therefore taken steps to control.

The duty under s28(b) of the Model WHS Act is focused on the impact of a person’s conduct on others’ safety. In a working from home context, where employees are often interacting with others through phone or web-based applications, this duty is most likely to be applied to ensure that a worker’s conduct does not place another person’s psychological safety at risk through inappropriate interactions, such as bullying or harassment. It would also apply when multiple workers live in the same residence, particularly where a risk of physical harm could arise (that is, domestic violence). Recently, the NSW Court of Appeal considered such an occurrence in Workers Compensation Nominal Insurer v Hill,^[10] finding that the worker had been killed in her home by her spouse (who was also her colleague) while at work.

The worker duties under ss28(c) and (d) of the Model WHS Act are focused on compliance with the instructions, policies and procedures that are created and implemented by an employer. The duties hint at the likely limited prospect of an employer being able to rely on a worker managing their own health and safety as a means of avoiding liability.

For this reason, while it may initially seem reasonable to assume that an employer could seek to rely on a worker ensuring their own health and safety in a work environment that the worker controls, this is not consistent with the standard of care imposed on workers by s28 of the Model WHS Act. That duty only requires workers to exercise reasonable care. It is a lower standard than that owed by a person conducting a business or undertaking (PCBU), which is to ensure the health and safety of a worker, in so far as that is reasonably practicable.^[11]

That duty is the primary duty that exists under the Model WHS Act for ensuring worker safety.

Employer duties – the significance of the primary duty

Under the model WHS laws, a PCBU has the primary duty of care to ensure, so far as is reasonably practicable, the health and safety of workers engaged or caused to be engaged, and of those workers whose activities in carrying out work are influenced or directed by the person (the primary duty).^[12]

The primary duty exists for the period of time that workers are at work in the business or undertaking. This includes the period of time during which a worker is working from home. The legal relationship between a PCBU and a worker is not just limited to employer and employee: it includes principal and contractor, business and volunteer, and labour hire employee and host employer, to name a few.^[13] The employer and employee relationship is the focus of this article.

The primary duty cannot be transferred to any other person; it always rests with the PCBU.^[14] This means that, while workers may be required to care for their own health and safety under the model WHS laws, a PCBU cannot transfer to the worker its primary duty to ensure that worker’s health and safety, even when work is performed in a workspace that is physically within the worker's (not the PCBU’s) control. The requirement to ‘ensure’ has been considered a requirement to guarantee or make certain a worker’s health and safety.^[15] It can only occur in the absence of any risks to the health and safety of a worker. The existence of a risk that is not eliminated or minimised so far as is reasonably practicable is what constitutes a breach of s19 of the Model WHS Act; it is not necessary that there is an accident or that a person is injured.^[16]

What, then, is the purpose of the worker’s duty? The answer is that it is there to hold workers accountable for their own conduct within a broader safety system, ensuring that they:

• act in a manner that complies with an employer’s safety system;

• do not act recklessly in relation to their own health and safety (or the health and safety of others); and

• hold a degree of accountability, at law, for their own and others’ safety.

MANAGING A WORKER’S SAFETY AT HOME

The ultimate responsibility to ensure that controls are in place for a worker’s safety rests with the employer, whether the worker is performing work at home at the direction of the employer or at their own request.

To discharge the primary duty, an employer, in allowing or directing work from home, must ensure that it has taken the necessary steps, so far as is reasonably practicable, to ensure:

• that the worker’s home work environment is without risk to the worker’s health and safety;

• the worker has appropriate equipment to safely perform their position from home;

• the employer has implemented safe systems of work in relation to the work being performed at home by the worker;

• the worker appropriately handles and stores any plant, structures and substances that the worker must interact with for the performance of their work at home;

• the worker has adequate facilities for their welfare during work time;

• the employer provides appropriate information, training, instruction or supervision to a worker that is necessary to protect the worker from risks to their health and safety when performing their work from home; and

• the employer monitors the health of workers and the conditions at the approved workplace for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.^[17]

The primary duty will be contravened when a measure is not implemented, in circumstances when it should reasonably have been, to obviate an identifiable risk. Therefore, an employer will contravene the primary duty when it fails to take particular measures to prevent an identifiable working from home risk.

For this reason, to minimise the risks associated with working from home, employers must have adequate systems in place, which are consistent with risk management principles, for workers to follow. Employers cannot rely on a worker exercising common sense and are expected to ‘recognise and plan for the inevitability of human error ranging from inadvertence, inattention or haste through to foolish disregard of personal safety and deliberate non-compliance with safe systems of work’.^[18]

WORKING FROM HOME HAZARDS

Working from home arrangements expose workers to a number of common hazards that may already be accounted for within an employer’s safety system, such as manual handling and ergonomics. However, working from home arrangements also pose new hazards that arise due to the particular nature of the work. Safe Work Australia lists the following as some of the new hazards that may arise in a working from home environment:

• ‘inadequate face to face support’;

• ‘limited opportunities to debrief workers after difficult conversations’ with clients, supports or co-workers;

• A ‘lack of regular training and mentoring’ arrangements that may be both formally and informally adopted within a workplace;

• the feeling of being ‘disconnected from their managers, colleagues and support networks’;

• non-work-related distractions that can arise from the home environment that impact the management of workloads; and

• a removal of the formal delineation between work time and home time that results in ‘workers not taking adequate breaks and working excessive hours’.^[19]

The isolation of a worker from the workplace caused by working from home arrangements also poses some unique risks that are more difficult for employers to monitor, particularly relating to workers’ mental health, and the risks posed by family or domestic violence.

In circumstances where:

• policies or procedures are developed to address these hazards;

• controls are implemented by an employer to manage the risks, with the consultation of workers; and

• workers are trained on those processes,

the worker duties under the model WHS laws will require workers to be accountable for taking the necessary steps under those policies to care for their own health and safety.

REASONABLE STEPS TO MANAGE RISKS

According to Safe Work Australia, employers must take steps to manage risks to a worker’s mental health, including the following (where reasonably practicable):

‘

• maintaining regular communication with your workers

• encouraging regular communication between workers

• making sure workers are effectively disengaging from their work and logging off at the end of the day

• eliminating or minimising physical risks (as these may contribute to psychosocial risks)

• providing workers with a point of contact so they can alert you promptly of any change in their circumstances or discuss any concerns, including how to access HSRs [health and safety representatives]

• ensuring workers know where to access information about mental health and other support services available

• responding appropriately to signs a worker may be struggling with working from home, e.g. changed behaviour, and

• informing workers about accessing their entitlements (e.g. if they become unwell, they should access sick leave and not feel expected to work because they are at home).’^[20]

In circumstances where a worker’s mental health is impacted, there is less likelihood that they will be able to take care of their own health and safety. For this reason, systems should be adopted that seek to monitor the health and safety of those working from home.

Domestic violence is a more difficult risk to manage and some risks may be outside an employer’s control, such as where a worker may not have disclosed a risk of family or domestic violence. However, providing a safe environment for workers to disclose family or domestic violence, assuring confidentiality, and not requiring workers to provide unnecessary personal details, will help an employer to identify these risks so they can be controlled.

If working from home is not a safe option for a worker and the employer wishes to demonstrate that it has discharged the primary duty, an alternative working arrangement must be provided, so far as is reasonably practicable. In circumstances where an employer has transitioned from an office environment to implementing permanent working from home arrangements, they may find themselves at risk of not being able to discharge the primary duty if they do not provide an alternative work location for those at risk of domestic violence. Similarly, employers who transition to 100 per cent working from home arrangements will need to implement more sophisticated control measures to address and manage these risks on an ongoing basis.

WORKER DUTIES IN CONTEXT

The worker duties under the model WHS laws fall within the broader context of safety duties in the laws. Under the laws, multiple duties can be held by more than one person at the same time,^[21] but the primary duty cannot be transferred to a worker to ensure their health and safety within the work environment, even when that work environment is within the control of the worker.

The worker duties are structured to ensure that worker conduct assists in facilitating the safety of workers throughout Australia. This does not mean a worker is excused from their duty if no such safety system exists – the courts recognise that, in circumstances where there is an act or omission by the employer within their safety system, the worker is not excused from the worker duty owed.^[22]

An employer must ensure that it identifies the hazards for workers when working from home, that it implements controls to eliminate or remove those hazards to the extent that is reasonably practicable, that it consults with workers when creating these systems, and that it trains workers on the relevant policies and procedures that are in place to ensure their safety. Once those steps have been taken, the worker duties in the model WHS laws require that worker conduct is consistent with those policies, procedures, and instructions.

To date, there has been no judicial consideration of the worker duties in the working from home context (and limited cases generally that have considered the application of worker duties). It is arguable that, should a case come before the courts that explores these issues, the duty of care required to be exercised by a worker performing work within their home work environment may be higher than in circumstances where work is performed at the employer’s workplace. However, that standard of care will not release the employer from the primary duty under the model WHS laws or the possible liability for failing to discharge it.

Gemma Sharp is a Special Counsel in Cooper Grace Ward Lawyers Workplace Relations and Safety team who has worked in the area of employment law and safety for over 15 years. EMAIL [e-mail]

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^[1] E Johnson, ‘Why has the great work-from-home experiment been so successful?’, Forbes (11 December 2020) <https://www.forbes.com/sites/forbestechcouncil/2020/12/11/why-has-the-great-work-from-home-experiment-been-so-successful/?sh=2488f84c28c7>.

^[2] S Williamson, ‘How COVID-19 has reshaped manager attitude about working from home’, BusinessThink, UNSW Sydney (27 August 2020) <https://www.businessthink.unsw.edu.au/articles/covid-19-manager-attitudes-working-from-home>.

^[3] CG Aksoy, JM Barrero, N Bloom, et al. ‘Working from home around the world’ (NBER Working Paper Series, Working Paper 30446, National Bureau of Economic Research, September 2022).

^[4] The model WHS laws comprise the Model WHS Act (Model Work Health and Safety Bill (as at 14 April 2022)), the Model Work Health and Safety Regulations and the model Codes of Practice.

^[5] Model WHS Act, s28.

^[6] Ibid, s3.

^[7] Ibid, s28.

^[8] Occupational Health and Safety Act 2004 (Vic), s25 outlines the duties of employees, which include:

‘

(1) While at work, an employee must—

a. take reasonable care for his or her own health and safety; and

b. take reasonable care for the health and safety of persons who may be affected by the employee's acts or omissions at a workplace; and

c. co-operate with his or her employer with respect to any action taken by the employer to comply with a requirement imposed by or under this Act or the regulations.

Penalty: 1800 penalty units

(2) While at work, an employee must not intentionally or recklessly interfere with or misuse anything provided at the workplace in the interests of health, safety or welfare.

Penalty: 1800 penalty units.’

^[9] Explanatory Memorandum, Model WHS Act, [130].

^[10] [2020] NSWCA 54.

^[11] SafeWork NSW v Scharfe [2021] NSWDC 260 (Scharfe).

^[12] Model WHS Act, s19(1).

^[13] Ibid, s7(1).

^[14] Ibid, s14.

^[15] Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467, 470.

^[16] Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, [13].

^[17] Model WHS Act, s19(3).

^[18] DPP v JCS Fabrications Pty Ltd [2019] VSCA 50, [51].

^[19] Safe Work Australia, Managing risks: Working from home <https://www.safeworkaustralia.gov.au/safety-topic/managing-health-and-safety/working-home/managing-risks>.

^[20] Ibid.

^[21] Model WHS Act, s16.

^[22] Scharfe, above note 11, 91.