home-based business – Page 3

Perhaps a step too far on homes as workplaces

According to an AAP report released on 8 October 2009, Australian homeowners could be liable for the injuries of workmen on their premises. According to Michael Tooma of Deacons law firm, the breadth of the proposed OHS model laws could cause big legal problems for homeowners (as if interest rate rises and balcony collapses were not enough).

“..if I call out a tradesperson to do some work at my home, my home is their workplace and I would be a person at their workplace. As such, I would have a duty to take reasonable care for my own safety and the safety of others and to cooperate with their reasonable instructions in my own home. If I breach that duty I could be liable for a criminal offence.”

The duty of care applied regardless of whether the worker was injured or not, Mr Tooma said. “If the person is exposed to risk, then potentially you’ve committed a criminal offence. Previously, there were clear boundaries around a home that really made it sacrosanct.”

The crux of Tooma’s argument is that

“The definition of a workplace in the legislation is so broad that any place where a worker works is deemed a workplace”.

Many corporations have struggled with their OHS obligations for staff who telecommute. Home-based businesses have a clearer legislative responsibility even if many of them are unaware of the responsibility.

The Model Safe Work Provisions Exposure Draft’s defines a workplace as follows

“(1) A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.
(2) In this section, place includes:

(a) vehicle, ship, boat, aircraft or other mobile structure; and
(b) any installation on land, on the bed of any waters or floating on any waters.”

In the Discussion Paper there is an example provided of what is not a business

“A householder hiring an electrician to repair a faulty electrical socket in their home (however the electrician will either be a worker for a business or undertaking or a business or undertaking in their own right if they are self employed).”

Tooma’s point would be what if the electrician was undertaking the work in a home office (if designated) or the whole house/workplace.

Of all the “modern working arrangements” listed in the Discussion Paper, working from home is not listed. If it had been, Tooma’s comments would have seemed less alarmist, probably because their would have been more general alarm as perhaps hinted at in the AAP article.

In that article, Tooma also says

“We’re talking about the Occupational Health and Safety Act intruding on the family home and imposing criminal liability on individual home owners under legislation that is supposedly aimed at safety in the workplace.

“It’s really a quirk of the way the definition works in that everywhere a worker goes, so goes the workplace.”

AAP does not treat the issue as “a quirk”. Not with a headline in The Canberra Times of “Home owners ‘could be liable'”.

Tooma may have raised a valid point but the AAP article shows how the media can “ice the cake” of an issue. It may have been better to present this quirk to the Government through the Public Comment process (and I am sure Tooma will) but it is also on all OHS advocates to bring the relevance of OHS matters to the attention of those who may not understand the risks they could be exposed to. This blog article could be considered an example of this.

The Public Comment phase on the draft documents is still young. If Tooma’s intention was to stir debate (and not alarm) he has raised an interesting issue that should be discussed. Whether the wider community of homeowners, home-based businesses and telecommuters take this perspective, we’re yet to see.

Kevin Jones

Who is all this OHS harmonisation for?

The public comment phase of Australia’s review of its OHS law harmonisation process begins in September 2009. To a large degree it is at this stage that the stakeholders can start refining their horse-trading. It will also be interesting to watch as the distraction of the new industrial relations legislation has gone since that law was introduced.

Safe Work Australia is using the traditional limited consultative troika – government, employers and unions, and will need to give public submissions considerable weight to balance interests.

Two of the employer groups have already started setting out some guidelines and expectations.

A statement from the CEO of the Minerals Council of Australia (MCA), Mitchell Hooke, was released on 14 August 2009. The only new element of the media release was

“The MCA has called for the National Mine Safety Framework to form the basis of national minerals-industry specific regulation within the Model OH&S Act.”

One of the aims of the harmonisation movement is to minimise regulations for specific industry sectors.

The Australian Chamber of Commerce & Industry was more expansive in its statement of 5 August 2009. The ACCI overstates the cost burden of OHS legislation in each State. The Model OHS Law Review Panel found overwhelming similarities between the legislations but acknowledged that the variations would be difficult to resolve.

The following quote from the ACCI statement illustrates the value of the ACCI perspective and also its major shortcoming.

“However, harmonisation of legislation is not of itself the solution to the compliance burden problem, but rather it will be the final content and quality of the model legislation and the approach to its implementation and enforcement that will be the critical determinants as to whether or not productivity gains are in fact realised in practice.”

It is accurate to say that the success of the legislation will be gauged by its implementation and enforcement. However, the conservative ideology of the ACCI is on show when it states that the harmonisation is intended to provide productivity gains. OHS legislation’s first aim should always be to improve the safety and health of the workforce which, in turn, increases productivity.

ACCI and other employer associations too often jump the safety element and go straight to productivity yet it is the safety of employees that is by far the greatest value that employers share with the community and the unions. Elsewhere in the ACCI statement, the importance of safety is acknowledged but the communication of priorities is muddled.

The ACCI also says “OHS laws should never be used as a vehicle to drive other agendas,” and then goes on to push issues of industrial relations and union behaviour that are not the core focus of the OHS model legislation process.

The ACCI statement closes on a more philosophical approach to OHS. It talks about “cooperative development”, “safety culture” and “continued engagements” but its own cooperation can be seen as conditional in the majority of the statement.

There is one statement that all involved in OHS law reform should consider. The ACCI states that practical and easily understood regulation is required.

“This is particularly important for the majority of employers who operate only in one jurisdiction and who will not receive a direct productivity benefit under harmonisation but who will bear the cost of understanding and complying with a new OHS Act and regulations.”

Not much will change for those companies who operate in a single State of Australia. It is also useful to note that the vast majority of businesses in Australia are small- and micro-businesses for whom all of this national hoo-ha is almost totally irrelevant.

The Australian Bureau of Statistics said in a webpage that was updated in September 2008 that

“Small businesses comprise the vast majority of Australian businesses. The importance of the small business sector to the Australian economy is recognised by researchers, government and policy makers as well as the business community as a whole. It is acknowledged that the characteristics and business drivers of small business are potentially very different to those of larger businesses and as such require specific, targeted policy initiatives. Central to the development of effective policy initiatives is a sound understanding of the nature and characteristics of this sector of the business economy.”

The employer associations do not represent the largest employment sectors in Australia – small businesses, micro-businesses and home-based businesses. Nor do the trade unions. So who exactly are the biggest beneficiaries of this whole OHS harmonisation process?

Kevin Jones

The OHS recommendations the Australian Government rejected

According to the Communiqué of the Workplace Relations Ministers’ Council on 18 May 2009, the following issues should be considered when drafting the new OHS legislation

“Application of the primary duty of care to any person conducting a business or undertaking

The panel recommends that the primary duty of care should be owed by any person conducting a business or undertaking. The objective of this recommendation is to move away from the traditional emphasis on the employment relationship as the determiner of the primary duty, to provide greater health and safety protection for all persons involved in, or affected by, work activity. Care needs to be taken during drafting to ensure that the scope of the duty is limited to matters of occupational health and safety and does not further extend into areas of public safety that are not related to the workplace activity. “

The first part of this is recognition of the variety of workplaces Australia now has, the number of people within worksites who are not employees and the previous issues of OHS and unpaid volunteers. It seems to expand to matters of public liability but then, curiously, pulls back to emphasise occupational health and safety. As Michael Tooma has noted, circumstances seem to have passed beyond the arbitrariness of the occupational categorisation. Continue reading “The OHS recommendations the Australian Government rejected”

How many Australians work from home?

SafetyAtWorkBlog is mostly produced from a home office. This is principally because the type of work undertaken can be done in a domestic setting. There are thousands of small – and micro-businesses in a similar situation. Thousands of people choose to run their businesses from home.

This has often been overlooked in the teleworking movement over the last decade or so. “Working from home” has more often than not been considered an addition to working in an office. The home workplace is seen as a back-up to a principal place of work.

In early may 2009, the Australian Bureau of Statistics released statistics on working from home, both as a main and second job. The media statement emphasises those who take work home and does have one paragraph on home-based businesses.

“People who were owner managers in their main job were much more likely to use their own home for their main location of work (27% of the 1.9 million owner managers) than employees (1.4% of the 8.2 million employees*). Women who were owner managers in their main job were more likely to use their own home for their main location of work than male owner managers (45% compared with 18%)”

The media statement went on :

“Around one in every 12 employed persons (764,700 persons or 8%) worked more hours at home than any other single location in their main or second job. Of these people:

The majority (83%) were aged 35 years or older

55% were women

39% were in families that had children aged under 15 years old

The main reason for working from home was ‘wanting an office at home/no overheads/no rent’ (37%), followed by ‘operating a farm’ (21%) and ‘flexible working arrangements’ (15%)

31% worked 35 hours or more at home in all jobs”

The OHS profession has never really been able to cope with a workplace that is also a domestic residence. To help, OHS professionals advise to have a dedicated home office so that the workplace has a defined area. This allows OHS obligations to fit the concept.

Working from a kitchen table with a dog, a hungry child and three baskets of washing to hang out, is not what the legislation anticipated but it can be the reality.

Another reality is that many media and professional people can work out of their car or local cafes almost 100% of their time. How does the advice from an OHS professional match those scenarios? Legislation based on the assumption of a fixed work location or site might not meet these particular working environments.

Another thing that is always annoying is the assumption that it is office workers who work from home, so the tasks are necessarily technologically based. Any OHS advice should apply to the issue of working from home in a broad sense and not just to specific work tasks.

As many professions become portable, OHS laws and legislation need to accommodate the flexibility. If not more so, so do company policies, job descriptions, claims assessments, workplace safety assessments and others.

Kevin Jones

Category: home-based business

Perhaps a step too far on homes as workplaces

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