Domestic violence and the workplace: the OHS connection

The traditional notion of the ‘workplace’ has given way to a more expansive contemporary model so much so that  today a ‘workplace’ could be anything from a central office,  a café frequented by an employee connected to a distant head office through the internet or an area set aside for work within an employee’s domestic premises.

 

In Australian States and Territories, the notion of the ‘workplace’ is a critical consideration in the determination of the scope of statutory occupational health and safety law.  This is so because the laws are intentionally confined in their scope to environments in which people carry out work. An examination of health and safety statutes around Australia reveals that environments such as mines, buildings, vessels, aircraft, vehicles, tents or moveable structures, installations on the bed of any waters are all capable of being a workplace under one or more of these statutes. Although there are differences amongst these environments, each of them is a workplace under occupational health and safety law when used by a person to carry out work, regardless of whether the person is an employee, a contractor or self employed. Once the necessary connection is made to health and safety law, statutory duties and responsibilities will follow. For example, the employer will be responsible to maintain a safe working environment for the employee and penalties could be imposed if the employer fails to do so. Employees are expected to conduct themselves safely when at work and comply with reasonable health and safety rules initiated by the employer.

 

The statutory responsibilities are not confined to just employers and employees. Responsibilities typically extend to the self employed, controllers of work premises, manufacturers and suppliers of things for use at work. From amongst this group of duty holders, it is the employer, however, that carries the heavier weight of occupational health and safety responsibility. This is reflected in the greater number of health and safety prosecutions brought against employers than against other duty holders.

 

In the light of the expanded notion of workplace, the reality for many Australian employers is that their health and safety responsibilities have also expanded to environments which, a decade ago, would not have been readily identified as a likely place of work. In this regard in 2010 it is not difficult to find many instances where employees carry out their duties from their own domestic premises. Indeed, the term ‘working from home’ is now closely associated with the movement advocating flexible work arrangements.

 

When the employee’s home premises are used for work, the home will become a workplace for the purposes of occupational health and safety law – at least during the time that the employee performs work within it for the employer. Not surprisingly, health and safety advocates have been cautioning employers to take into account occupational health and safety considerations when contemplating work from home arrangements.

 

Before agreeing to a work from home arrangement, the cautious employer will assess the employee’s premises with a view to identifying and responding to any potential source of hazard. Risk assessment should be carried out and control measures should be implemented to minimise risk to the lowest level reasonably practical. These initiatives can be readily carried out on structures and equipment such as floors, walls, electrical connections, fuse boxes, computers and the like. The home environment, however, is not just comprised of structures and equipment. Other aspects should also be taken into account – including the likely impact upon health and safety from other people who either share the premises with the employee, or frequently come into contact with those premises.  

 

The employer has limited ability to control who comes into the employee’s domestic premises used for work purposes. It would be an extremely rare case in which the employer had the ability to constantly monitor the entry and exit of people to and from an employee’s domestic premises. Consequently, if other people pose a threat to the safety of the employee working from home, the employer’s capacity to shield the employee from that risk is greatly diminished.

  

With work from home arrangements continuing to grow in popularity, it is timely for employer attention to be given to the risk which domestic violence poses to occupational health and safety.  Perhaps it is an awkward truth, but the reality is that domestic violence is not a myth and its incidence should be a concern to the whole community.  According to Workplace Partners against Domestic Violence (WPADV) domestic violence costs the Australian economy over $8 billion per year, and $484 million is the direct cost to the business and government sectors. In a national survey by the Australian Bureau of Statistics conducted in 2006, 15% of Australian women said they had experienced violence by a previous partner and 2.1% by a current partner. [1] American research has found that between 50 and 74% of employed women experiencing domestic violence, are harassed by their partners while they are at work [2].

 

No reasonable person would dispute the proposition that violence at the workplace is unacceptable. An employer that tolerates such a workplace will fail in the responsibility to maintain a safe working environment. Much work has been done over the last decade to address violence at the workplace, with particular attention given to workplace bullying. It is also notable that under the New South Wales occupational health and safety regulation concerning risk assessment, ‘the potential for workplace violence’ is listed as one of the numerous potential sources of hazard that should be assessed for risk. 

 

At first glance some may not find the potential for domestic violence to be a relevant consideration or appropriate to confront when contemplating work from home arrangements. However, in the context of occupational health and safety law it is just as relevant as the condition of the fuse box and the electrical wiring. In view of this, the cautious employer will take reasonable measures to assess that potential before concluding any arrangements regarding work from home. As part of that process, the issue should be addressed with the employee in a confidential and sensitive manner. The employer should be given access to the employee’s premises on a regular basis to allow ongoing assessment of the physical environment. The employee should be required to inform the employer as soon as possible of anything that, to the employee’s knowledge, might place the employee’s health and safety at risk including, but not limited to, the potential for violence against the employee. If the risk exists, proactive measures should be taken in response. For example, the arrangements may need to be suspended until the risk abates. In those circumstances, the employee should be required to perform the work at either the employer’s central workplace or such other premises as are reasonable and practical.

 

There are also other initiatives available more generally to employers who wish to respond positively to employees who are subject to domestic violence. This is not to say that these initiatives will be practical for every employer, but where the employer is willing to provide resources and assistance, the employer might consider, for example, work-based safety plans, secure car parking, allowing special leave, changing a person's duties, workstation, phone number and email address, instituting work-based restraining orders and implementing an awareness program. Any policy or procedure on the subject should address privacy and confidentiality and information about access to employee assistance programs and government or charitable agencies. 

 

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