Work health and safety laws

On this page

• Meeting your organisation's WHS requirements when workers are working from home
• Risk assessment of a worker's proposed remote working premises
• Managing the performance of employees working at home
• Can your organisation direct a worker to return to the workplace?
• Responding to employee requests for flexible work arrangements

Your organisation may be back in the workplace, but some employees and other workers may remain working at home or your organisation may have adopted a hybrid working structure.

Meeting your organisation's WHS requirements when workers are working from home? 

Under work, health and safety (WHS) laws, a Person Conducting a Business or Undertaking (PCBU) must ensure, so far as is reasonably practicable, the health and safety of workers while they are at work. This includes when workers are working or volunteering from home.

You can minimise health and safety risks while workers are working from home by using the four-step risk management process. The process involves:

• identifying the things that could harm someone while working from home (the hazards)
• assessing risks by considering what could happen if someone is exposed to a hazard and the likelihood of that happening
• taking action to control the risks, and
• reviewing the control measures

Consultation

You must also consult, so far as is reasonably practicable, with workers (and their health and safety representative, if there is one) about any safety issues that may affect them. This includes consulting with workers when identifying hazards, working out how to control risks, and how to review the control measures. Employers should consult workers before implementing work from home arrangements or making other changes.

Managing mental health issues

Remote or isolated work is both a psychosocial and physical hazard that can cause psychological and physical harm. It is, therefore, important to consider psychosocial hazards when undertaking the risk management process.

Minimise health and safety risks

Ways to minimise health and safety risks while workers are working from home include: 

• introducing workplace policies around working from home or working remotely
• requiring workers to complete a WHS checklist or other approval process before starting, or changing, a working from home arrangement
• conducting an inspection of the worker’s work environment (virtually or in person), or requesting photographs of their workstation set-up
• encouraging the reporting of hazards or potential risks
• having regular communication with workers to identify or assess any psychosocial risks
• providing wellbeing tips and considering ways for employees to stay connected with their team, and
• providing information on how to work effectively and productively from home 

Risk assessment of a worker's proposed remote working premises 

Conducting a safety inspection is one way to identify potential hazards for workers who are working from home. Ordinarily, it would be ideal to have an appropriate person conduct a risk assessment on-site at the worker’s proposed premises of remote working. However, it may not always be reasonably practicable.

As provided in the examples above, other options may include a virtual inspection or requesting that the worker provide a photograph of their working from home set up. You could also provide a checklist or questionnaire for your worker to complete themselves. This checklist or questionnaire should address elements such as, for example, the placement and height of chairs relative to desks, the angle of monitor screens or laptops, and the surrounding environment generally.

Managing the performance of employees working at home 

The performance of employees who work from home should be the same as those who work in the office and you should continue to follow any existing performance management policies. However, managing the performance of employees working from home can present challenges due to the lack of face-to-face interaction or reduced communication.

Communication

An employee’s performance when working from home can be managed effectively by setting clear and realistic expectations of performance targets and the frequency of and lines of communication before the employee starts working from home.

To manage the performance of employees working from home, arrange structured regular catch-ups to:

• check-in with them
• set clear priorities and timelines to complete work
• allow them an opportunity to seek guidance or support, and
• help assess if they are meeting performance expectations

Monitoring IT usage

Employers may also monitor an employee’s email traffic, access to internet sites, or keystrokes. However, be aware that state-based legislation may limit an employer’s ability to conduct workplace surveillance, unless the employee has been given written notice of the surveillance in accordance with the specific rules contained in the legislation. You should seek legal advice for further information, if required.

Timesheets

You could also implement a timesheet system – each day employees will list the tasks they worked on and how long they spent on each task. However, requiring an employee who works from home to complete timesheets may be an indication of a lack of trust or fairness, in particular if other employees are not also required to complete timesheets. So think carefully about using this strategy and if it is deemed necessary, you should consider applying it equally to all employees, and not only those who work from home.

Adjustments

Employers should also be mindful that not all tasks that an employee performed in the office may be easily transferrable to the home. Similarly, not all roles are suitable for remote working. Any limitations in the performance of duties as a result of working from home should be discussed. To the extent that any modifications to duties are agreed, these should be clearly documented on the employee’s personnel file.

Generally, an employer is not obligated to accommodate a change in the employee’s role or responsibilities in order to allow the employee to work from home. However, if an employee is eligible to request for flexible working arrangements (such as working from home) under the Fair Work Act 2009 (Cth) (Fair Work Act), the Fair Work Act prescribes what employers should do when they receive the request. Further information on flexible working arrangement is provided below. You should seek legal advice for further information on your obligations, if required.

Adequate equipment and suitable work environment

It is also important to ensure that the employee has the necessary tools to perform their work from home, such as IT capabilities and having a suitable work environment. If an employee’s performance is being affected by poor network coverage, it may not be possible for them to continue to work from home.

Similarly, if the employee is exposed to health and safety risks at home and the organisation cannot eliminate or minimise the risks, so far as is reasonably practicable, you may decide not to allow workers to work from home.

Employees should understand that a condition of working from home is having the ability to perform all the requirements of their role in accordance with their employment contract.

Can your organisation direct a worker to return to the workplace? 

Employees may be reluctant to come into the workplace for a number of reasons – for example, if they have health or mental health concerns, or if they are (or they live with a person who is) particularly vulnerable to COVID-19. Consulting with employees and managing employee concerns about returning to the workplace appropriately at the outset is the best way to avoid employees refusing to come into the workplace.

However, employers can require employees to return to the workplace if:

• the employee is not on approved leave
• the working arrangement is not part of a Fair Work Act flexible work arrangement, and
• the direction is lawful and reasonable

For the direction to be lawful, employers will need to consider their work health and safety and other legal obligations, as well as the terms contained in the employee’s contract of employment and industrial instruments and any specific agreement relating to their working arrangements.

The direction must also be reasonable having regard to relevant workplace policies, requirements under industrial instruments, WHS consultation obligations and the individual’s circumstances. If required, you should seek legal advice on whether a direction to return to work is lawful and reasonable.

What if the employee refuses to return to the workplace?

An employer that requires an employee to attend the workplace (either full time or under a hybrid arrangement) must consider the basis on which its employee refuses to return to the workplace, especially where they have any reasonable concerns regarding their health and safety or other legitimate reasons. As mentioned above, in certain circumstances, eligible employees are entitled to request flexible work arrangements under the Fair Work Act, which may include working from home. Employers must comply with the legal requirements in responding to such requests.

Where an employee has no reasonable basis to refuse to attend the workplace, in the absence of there being an approval to work from home, the employee may seek to take a form of authorised leave (such as annual leave).

If the employee simply refuses to attend work without a reasonable basis, and without the employer’s approval, the employer may initiate a disciplinary process for failing to follow a lawful and reasonable direction. Seek legal advice before taking any action.

Responding to employee requests for flexible work arrangements

Some employees are entitled, under the Fair Work Act, to request flexible work arrangements, which may include a request to work from home.

Full-time and part-time employees can request flexible work arrangements if they have worked with the same employer for at least 12 months and they:

• are pregnant
• are a parent of (or have responsibility for) a child of school age or younger
• are a carer
• have a disability
• are aged 55 or older
• are experiencing family or domestic violence, or
• they provide care or support to an immediate family or household member who is experiencing family or domestic violence

Casual employees who have been working with the same employer regularly and systematically for at least 12 months, and where there is a reasonable expectation of continuing work with the employer on a regular and systematic basis, are also eligible to request flexible working arrangements.

If an eligible employee makes a request (which must be in writing and must explain what the changes are, and the reason behind the change), the employer must respond within 21 days. The response must include whether the request is approved, refused, or where an alternative arrangement has been agreed.

Refusing a request

An employer may only refuse a request if they have:

• discussed the request with the employee
• genuinely tried, but been unable, to reach agreement with the employee
• considered the consequences of the refusal for the employee, and
• refused the request on ‘reasonable business grounds’

What is considered ‘reasonable business grounds’ will depend on the employer’s circumstances (for example, the size and nature of the business). It can include:

• that the requested working arrangement would be too costly to implement
• other employees’ working arrangements cannot be changed to accommodate the request
• it would be impractical to change other employees’ working arrangements or hire new employees to accommodate the request, or
• the request is likely to result in a significant loss in efficiency or productivity or would have a significant negative impact on customer service

If the employer and employee cannot resolve a dispute about flexible working arrangements, they can apply to the Fair Work Commission for assistance.

Separately, employees may be entitled to request a flexible work arrangement (including to work from home) under other mechanisms including an applicable award, enterprise agreement, a contractual term, state or territory disability discrimination laws, or an applicable workplace working from home policy. If required, seek legal advice to understand your obligations.

The content on this webpage was last updated in August 2024 and is not legal advice. See full disclaimer and copyright notice.

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