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Shine Lawyers | Comcare and Flexible Working Arrangements

Case study: Comcare & flexible working arrangements

Flexible working arrangements have become easier with constant improvements in technology. One example of the expanding workplace is responding to emails on your phone during the train commute home, while others like to steal an hour on their laptop after putting the kids to bed. Being reasonably available via email outside of standard working hours might even be an implied requirement in some roles.

Flexible working arrangements can be win-win for all

Flexible working arrangements, and working from home in particular, allows flexible hours, increased productivity, better work-life balance and increased job satisfaction. Even when working outside the primary place of work, employees and employers continue to have work health and safety obligations.

When injuries occur while working from home, some difficult questions arise, including under the Comcare scheme (the workers’ compensation scheme for Commonwealth and ACT government employees and other employers under licence).

Comcare scheme vs other workers’ compensation schemes

Under the Comcare scheme, in order for an injury to be accepted as being work related, the injury must arise out of or in the course of employment. It is well established that for an injury to be accepted it, does not necessarily have to be in the usual workplace or while performing work duties.

Case studies can teach us a lot

Hargreaves and Telstra [2011] AATA 417 (17 June 2011) is an interesting decision by the Administrative Appeals Tribunal about injuries sustained while working from home. Ms Hargreaves had the approval of her employer Telstra to work from home, and on two occasions fell while using her stairs; sustaining injuries both times. The first fall was while descending the stairs to get medicine from her kitchen and the second was descending the stairs to lock the front screen door of her home after a family member left the house.

Telstra refused to pay workers’ compensation on the basis that Ms Hargreaves was not performing her work duties, and was not in her approved workspace when she was injured.

The Administrative Appeals Tribunal decided that the injuries sustained from the falls were work related. The Tribunal treated the fall when going to get medicine in the same vein as an employee on a refreshment or comfort break at work. Had she been working in the office, then an injury sustained on a tea break or comfort break would have been compensable.

The Tribunal said the second fall was in the course of employment, because Telstra required Ms Hargreaves to have the front door of her home locked while working from home. She was therefore injured performing a work requirement when she fell.

In Demasi and Comcare [2016] AATA 644 Ms Demasi was working from home in the course of her employment with the ABC. She took a break to go for a run and was injured. While the Tribunal accepted that her home was her place of work, the Tribunal decided that her injury was not sustained during an ‘ordinary recess’ in her employment. Instead she was found not to be in the course of her employment while injured and therefore the claim was refused.

The scope of acceptance for claims for injuries sustained while working from home is still being tested by the Tribunal, and each claim is decided on its specific facts.

Written by Shine Lawyers. Last modified: January 28, 2021.

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