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) 4220 7100 Fax: (02) 4225 2997 Law Group Email: lawyers@accesslawgroup.com.au Website: www.accesslawgroup.com.au
Where we see Sleep/Fatigue Issues 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
So – Broadly Speaking In Part – look at hours actually worked & changes causing fatigue Broader WH& S Issues relating to Planning Actual Work Performance Impact of Other Factors
Overview of Employers Legal Responsibilities Workplace Health & Safety Act Fair Work Act Awards and Industrial Agreements Enterprise Agreements Common Law
The Fair Work Act No Contracting Out National Employment Standards Modern Awards Industrial Instruments – Enterprise Agreements Employment Contracts
Workplace Policies – enforceable? Flexible Working Arrangements Maximum Hours of Work under FWA typically cap at a 38 hour week e.g. Each day – 8 hour/day Each week – 38 hour/week Ordinary hours – the specified number of hours employees are required to work each week
Requesting Additional Hours Why requested What are the operational requirements Is the workforce being adequately Informed Safeguarded remunerated
When are Additional Hours Unreasonable? 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 Working Hours Case (2002) 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 of 48 hours per week will rarely be reasonable 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
The Working Hours Case( 2002) (cont’d) 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
Case Law 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
Case Law (cont’d) 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 one 8 hour shift. There was no weekend work and no work after 6.30pm. Argument – the employees argued that it was unreasonable to work over the 38 hours standard citing issues concerning family responsibility and fatigue. Fatigue was not made out
Case Law (cont’d) 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 work. In the second week of the roster there was a 16 hour break between the Monday 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.
Case Law (cont’d) 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
Workplace Health and Safety 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
Workplace Health and Safety (cont’d) 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 often the focus of applications which are made before 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
Employee Health Generally 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
Employee Health Generally (cont’d) 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
Definition of the Workplace “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 own employees but with other people
Definition of Worker 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
Definition of Worker (cont’d) 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
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