Working from home (WFH) and the challenges of returning to offices safely are with us for the foreseeable future, bringing with them new playing grounds for workplace agreements and industry awards. Health and safety concerns surrounding home-based work are also back in employers’ priority baskets.

The pandemic-driven rise in WFH and lack of award provisions governing the move has prompted the Fair Work Commission to release a proposed award flexibility schedule to help employers and employees agree on new ways of working. Among terms giving businesses a chance to breathe a sigh of relief is the ability for both parties to agree on either working from home or having earlier start or finish times without employers being up for overtime or penalty rates or any other traditional award constraints.

Defining flexibility

The clauses are being piloted over the next 12 months and interested parties are encouraged to contribute to the review. FWC president Iain Ross took it upon himself to construct the 14-page document of draft flexibility terms, pointing out on their release last month that only about 20 per cent of workers are covered by enterprise agreements that either deal with, or outline, how home-based work is to be carried out. Additionally, very few small businesses are covered by enterprise agreements, and many modern awards lack any provisions whatsoever to deal with issues relating to WFH and other flexible arrangements.

“The absence of express provision to facilitate working from home can impose partial constraints on these arrangements,” Mr Ross said. “It is likely the direct economic and social impacts of the pandemic will be felt for some time to come and that there will be a continuing need for flexible work arrangements to assist employers and employees in adapting to the changed conditions and to support the recovery.”  

The reason behind the introduction of such a clause is simple: if an award does not deal with flexible hours and WFH, then the span of hours within which ordinary hours can be worked continues to apply, points out a spokesperson from leading employment law firm People + Culture Strategies.

And when employees are juggling everything from home-schooling kids, suddenly working at the dining table and dealing with dozens of home-based distractions from laundry to attention-seeking pets, working hours that fall outside the 9-to-5 norm is inevitable. 

“Employees that need flexibility due to such reasons could be disadvantaged by not being able to work in the preferred hours for which flexibility has been sought,” the spokesperson said. “The employer may be required to pay overtime or penalty payments in circumstances where the employee wants to work outside the ordinary span of hours specified in the award or due to staggering start and finish times.

“The ACTU has also expressed concern that workers are without protection on matters such as working hours with some employers anecdotally unwilling to pay overtime to employees working from home.” *

Breaking a fall

Another challenge facing both employers and employees is the prospect of accidents occurring while working from home. Work Health and Safety Laws (WHS Laws) broadly define a workplace as anywhere work is done, whether this is your physical office or a part of your home where you settle down to work. The important factor here is that the WFH workplace is defined as only where work is carried out, said Luisa Gonzaga, WHS expert and partner at Madgwicks Lawyers.

“Therefore it is important that there is a clear understanding and agreement which part of the employee’s home work is to be performed,” Ms Gonzaga said.

Risk mitigation strategies are just as important. Employers are advised to clarify home workplaces of employees, undertake risk assessments, take photographs of the specific areas and provide workers with policies and procedures to report hazards and incidents. Ms Gonzaga also advises managing mental health risks by keeping in regular contact. On the employee’s side, they should ensure that if any changes are made to their home workplace that the employer is informed.

Following such strategies demonstrates compliance with WHS Laws. Everything helps when trying to define the blurry line between workplace and home. One oft-cited incident is the 2011 case involving a Telstra employee who injured her shoulder falling down her stairs on two separate occasions while working from home.

The first injury occurred when she left her workstation to fetch cough medicine. This was deemed a necessary absence from work, the same as a meal break. The second injury occurred when the employee followed directions from Telstra to lock her front screen door. This too fell within the scope of employment.

The upshot was that the Administrative Appeals Tribunal took the view her injuries from both falls occurred in the course of working for Telstra and the employee was awarded costs for all medical and related treatment plus compensation for incapacity to work.

“While employers are not in physical control of employees' homes, they are however, in 'control' of the working conditions at home and only of the place identified as the workplace,” said Ms Gonzaga. “Therefore, it is important that systems of work are in place specifically around working from home.”

* For more information on awards and workplace entitlements during the pandemic go to