Opinion: Employers remain legally responsible for workplace safety, so they need enough authority to decide when remote work is appropriate, argues founder of Safetrac, Deborah Coram
The Victorian government’s proposal to allow eligible employees to work from home two days a week may be well-intended, but they risk overstepping the mark by hindering an employer’s ability to manage risk. Legal responsibility needs to be balanced against managerial discretion.
I’m a big fan of flexible work. Every member of our team at Safetrac works remotely, giving us access to great people wherever they live.
But as an employer, I am also acutely aware that flexibility comes with responsibility.
Should employers, who remain legally accountable for managing workplace risks, retain enough discretion to design work in a way that is safe, effective and suited to their workforce?
My view is 100 per cent yes, and here’s why.
When the ‘workplace’ is everywhere
Our country’s workplace health and safety laws leave little room for ambiguity. Employers are responsible for providing safe systems of work, identifying and managing psychosocial hazards, consulting with workers and demonstrating that the controls they put in place are working.
Those obligations have become more demanding at precisely the same time that the workplace itself has become harder to see in the traditional sense.
During Covid, remote work became normal. A generation ago, the workplace was a physical place. Today it may be hundreds of individual homes, co-working spaces, client offices, even cafes.
The challenge is that employers’ legal obligations haven’t changed and are actually harder to meet because the workplace is no longer one physical location.
Consider a manager trying to oversee a largely remote team, spread across multiple states. They need to identify psychosocial risks such as excessive workloads, isolation and conflict. But many warning signs are harder to recognise when employees are working remotely. Employers have less visibility than ever before yet remain fully accountable for the outcome. That is why discretion matters.
Workplace risks employers must manage
Employers need to consider three issues when it comes to psychosocial risk with WFH.
The first is work design. It is one of the most important controls recognised by Australian workplace regulators for managing psychosocial risk. Decisions about where people work, how often teams come together and how collaboration occurs are not simple matters of culture or convenience, but can play a key role in how work design can reduce risk.
A software development team may function effectively with minimal office attendance. A newly formed project team may benefit from spending more time together. Customer-facing functions, compliance teams and highly collaborative roles may require something different again.
The law has traditionally recognised this reality. It sets standards and expects employers to exercise judgement. The Victorian proposal risks narrowing that judgement while leaving employers fully responsible for the consequences.
Secondly, there is management support, which presents a similar challenge.
Australian regulators consistently identify effective supervision as an important control for psychosocial risk. Managers are expected to recognise excessive workloads, social isolation, declining wellbeing and disengagement before they become more serious problems.
Remote work can absolutely support effective management, but employers need the flexibility to determine when face-to-face interaction strengthens those efforts and when it does not. Those observations often provide the earliest opportunity to intervene before a problem escalates.
The third challenge is consultation. Meaningful consultation is a legal obligation under Australian workplace health and safety law. It relies upon continuous dialogue between employers and workers, not annual surveys or occasional emails.
Distributed workforces can achieve that standard, but doing so requires different systems, greater investment and more deliberate engagement.
Again, employers remain responsible for demonstrating that these systems are working.
Unintended legal consequences
There are also several implications in effectively creating a new workplace without creating a clear legislative framework to support it.
Employers remain legally responsible for a host of obligations including work health and safety, psychosocial hazards, privacy and consultation. Yet there is very little legislation to explain how these duties should be discharged when the workplace is someone’s home.
This creates a grey area for employers which has become a broader policy issue that deserves attention nationally. If governments want to expand rights to work remotely, they should also provide clearer guidance on how employers are expected to discharge their legal obligations when someone’s home effectively becomes the workplace.
I also remain very concerned about the broader economic signal Victoria is sending.
Having state-specific work-from-home rights creates unnecessary complexity for national employers by giving employees doing the same job different workplace rights simply because they are based in a different state.
Businesses value consistency and regulatory certainty. Introducing state-specific employment rights that increase complexity and reduce managerial flexibility risks making Victoria a less attractive place to invest, employ people and grow.
Rights and responsibilities
Flexible work is one of the most significant improvements to working life in decades. It has expanded opportunities for employees and employers alike.
But rights and responsibilities need to evolve together.
Governments should undoubtedly hold employers to high standards. They should expect evidence, accountability and genuine care for employee wellbeing.
They should also recognise a principle that has long underpinned Australian workplace law: those who carry the legal responsibility should retain sufficient discretion to discharge it.
Accountability and discretion should sit together. If employers remain legally responsible for workplace safety, they need sufficient authority to organise work in a way that allows them to meet those obligations.
Deborah Coram is the founder and CEO of compliance management platform Safetrac.
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