IOH Fatigue and Sleep Management Interest Group 22 July 2015 - - PowerPoint PPT Presentation
IOH Fatigue and Sleep Management Interest Group 22 July 2015 Suite 1, Level 8, 200 Crown Street WOLLONGONG NSW 2500 Presented by: PO Box 337 Wollongong NSW 2520 DX 5176 Wollongong Tom Ellicott Managing Director - Access Tel: (02)
Suite 1, Level 8, 200 Crown Street WOLLONGONG NSW 2500 PO Box 337 Wollongong NSW 2520 DX 5176 Wollongong Tel: (02) 4220 7100 Fax: (02) 4225 2997 Email: lawyers@accesslawgroup.com.au Website: www.accesslawgroup.com.au
IOH – Fatigue and Sleep Management Interest Group
22 July 2015
Presented by: Tom Ellicott – Managing Director - Access Law Group
Implementation – Rosters & Roster Change New workplaces
Change in location Change in conditions Other workers/contractors
Review of Contracts/Tender Responses Preparation of Work Statements/Procedures Prosecutions Arising from Incidents Industrial Disputes – EA Negotiations & Industrial
Action
In Part – look at hours actually worked & changes
causing fatigue
Broader WH& S Issues relating to
Planning Actual Work Performance Impact of Other Factors
Each day – 8 hour/day Each week – 38 hour/week
Why requested What are the operational requirements Is the workforce being adequately
Informed Safeguarded remunerated
Additional hours are unreasonable when
The additional hours would pose a threat to the employee’s
health and safety e.g. in situations of fatigue or stress
The additional hours would affect the employee’s personal
circumstances, e.g. family responsibilities
You have not given the employee reasonable notice; or The additional hours exceed the maximum ordinary working
hours and no averaging period is in place
The Tribunal noted the usual convention that working
between 44 to 45 hours per week is seen to be reasonable and regular overtime giving rise to working weeks in excess
The borderline seems to be that the cut-out will occur
definitely after 48 hours per week and exists somewhere between 44 and 48 hours depending on the nature of the responsibility
One of the major factors for consideration include the
remuneration being paid to the employee by way of overtime, penalty rates or other compensation for working additional hours
The usual patterns of work in the industry in which the
employee works
What is the nature of the employee’s role and the level of
responsibilities
Are the hours consistent with a modern award or enterprise
agreement that applies or any agreed arrangement between the employer and employee
MacPherson v Allied Mining Services Pty Ltd (No.2) (2009)
Finding that the adoption of new rosters provided significant
benefit to the employee that justified its significant capital investment in new machinery and also assist in the preservation of a permanent employee’s jobs
The Court were not persuaded that the effect of the roster on
family responsibilities made the roster unreasonable nor did arguments concerning possible issues around fatigue management
The Tribunal was satisfied that the roster benefits outweighed the
detriment to the employee whereby the Court identified there was adequate compensation for the work pattern allowance and by extra rostered days off arising out of the new shifts
The employer had sought to introduce a roster of 44 hours per week
rotating through a 2 week cycle of 4 day shifts being 12 hour shifts and
6.30pm.
Argument – the employees argued that it was unreasonable to work
responsibility and fatigue. Fatigue was not made out
Well documented studies deal with fatigue management and more particularly when you have a rotating shift, for example, from morning to afternoon and/or in some circumstances to night shifts. In this case it was only a transition between morning and afternoon and, the Court considered that dangers were not as great as a fixed 12 hour day shift.
In the first week of the roster, the employee had a 12 hour break between Monday and Tuesday shift and the Tuesday and Wednesday shift which included getting to and from
and Tuesday and then a 100 hour break which went around to the new cycle.
The Court found that based on the terms of this roster, there was sufficient time for family activities which would allow for relatively early bedtime occurring across 3 days in week one and 2 nights in week two. The Tribunal found the standard break between shifts was at least 10 hours and that was sufficient having regard to alleged time for travel and so forth.
The Tribunal considered the fact that working after night shifts can
cause sleep deprivation leading to a risk of injury in a journey
The new roster meant that the employee would not eat with his family
and lengthy work has reduced his ability to communicate with his children and spouse
The Tribunal held that it preferred the employer’s arguments regarding
the impact of these issues
Australia Post Decision April 2014
The usual obligation is that an employee should not be exposed to a
foreseeable risk of injury and/or the exacerbation of an injury
The duty applies across the board not only to employers but also to
employees
A long held view that 12 hour shifts, particularly on a rotating cycle, can
in some circumstances identify situations where employees can be under fatigue and sleep deprivation
MacPherson’s case clearly focuses an employer’s attention towards
what are the inherent requirements of the job, the type of fatigue which might be identified in a normal shift pattern and then, how that may be exacerbated by an increase in time or, just simply working over too long a period
Other speakers will discuss no doubt the psychological
and physical impacts of working longer rosters and in particular the impact of rotating rosters which are
the Fair Work Commission or, Industrial Relations Commission in New South Wales
These matters have to be dealt with on a case by case
basis and, using MacPherson’s case as a guide, it is important to identify precisely what is the indicia of the particular role and function, and how does that play out
Pre-employment Physical examination Review on employment and Ongoing medicals Identify concerns which are identified with particular employees
concerning issues of fatigue and other management – e.g. there may be issues outside of the workplace which are causing fatigue and/or other issues concerning an employee’s management of their role and responsibilities
Duty to act and take action and provide assistance
Interplay with employee representatives, unions and, looking carefully
at Award provisions concerning performance management and issues and the application of those types of matters.
Be proactive, listen to the panel’s expertise with relation to what are the
sorts of behaviours that are exhibited by fatigued employees – commonly, we see incidents of poor performance, uncharacteristic behaviour (e.g. arguing, swearing and more extreme cases, fighting) aside from obvious physical symptoms of fatigue
“Workplace” means any place where work is performed. It
can be any building or structure where workers or self- employed persons carry out work, including a vehicle, client’s premises or worker’s home office
Don’t be caught with the blurring about the relationship
between contractors, volunteers or other people. The bottom line is if there is work being undertaken at a certain site then it is a workplace and obligations extend and these can often mean that we are interacting not only with our
Extends to an employee of a person conducting a business or
undertaking
A contractor or sub-contractor An employee of the contractor or sub-contractor An employee of a labour hire company who has been assigned to work
in the workplace
An out worker An apprentice or trainee The work experience student The volunteer
An employer must be prepared to identify risks and
hazards
The extent of the duty depends on the level of control
which an employer has with respect to
The premises where the work is taking place The actual work being performed The equipment or plant which is being used
Officers have a positive duty of care to exercise due
Due diligence extends to
Acquiring and keeping an up to date knowledge of work,
health and safety matters
Understanding the nature of operations and types of
hazards and risks associated with the operations
Ensuring the business has available appropriate
resources and processes to eliminate or minimise risk
To ensure that there are appropriate processes for receiving and
considering information regarding incidents, hazards and risks and responding in a timely manner that information
Ensuring the business has an implements process to allow your
business to comply with its duties e.g. reporting incidents, consultation with workers and providing training
Verifying the provision and use of resources and processes is
ensure that everything is documented
Having health and safety policies and
Having a process for managing and
Consultation with workers Laying out a process for responding to
These underpin the Health and Safety Management System They should be prepared by a suitably qualified expert
whether a properly qualified WH&S officer internally or, by engaging an external expert through organisations such as the Safety Institute of Australia
Locally, there is a dearth of internal expertise and in
particular, a number of suitably qualified external experts who have proper industry expertise and skill
The policies and procedures should
Demonstrate the business addresses health and safety
Clearly advocate that the business is committed to
working within a set of health and safety principles
Clarify functions and responsibilities of employees in
the business
Ensure the systems of work are recorded, communicated
and implemented consistently throughout the business
Are effective in guiding action formally and not taking
ad hoc or informal approaches
Ensure that the staff feedback indicates that policies and
procedures are understood and, the definitions, for example, about the “do’s and don’ts” are clearly set out in the material
Identify the work being done, physical characteristics required to
perform the inherent requirements of the job
Assess the risk of health and safety posed by fatigue e.g. the ability to
be able to manage equipment, operate tools, make operational and functional decisions – you are not the SAS and, it’s not expected that you need to deliberately put your employees under situations of fatigue so that they are able to manage themselves. The workplace is not a battle field
In consultation with the workforce, implement appropriate measures
to control risks
Utilise external consultants with specific experience with relation to
your nature of work and, your industry as they will be able to understand the various industry based studies which have been undertaken, an example of which is the effect of rotating rosters in the mining industry
Implementation of the measures to control the risks The ability to communicate those measures to the workforce and
record participation not only by people sitting in a room but also employees putting pen to paper to write out what would be acceptable ways to minimise fatigue control, for example, taking sleep, not drinking excessively, or burning the candles at both ends
Notifying the employee if there are concerns around
fatigue management
Monitoring review and controls and providing feedback to
the workforce
Establishing health and safety committees and, ensuring
that health and safety representatives are appointed who cover the breadth of the workforce so far as it is possible and reasonable
Responsibilities with respect to fatigue
Understanding what goes on in the “workplace” is
Policies and procedures regarding workplace
management of fatigue and in particular issues such as rotation of rosters and fatigue management generally, need to be spelt out in clearly worded plain language policies which have been drafted by properly qualified experts having regard to the standard industry practices and, known risks
Use properly qualified experts and in particular, obtain
the assistance of external consultants to industry based studies which have been done on the management and control of fatigue related problems in the workplace.