Bushfire smoke has affected our city and surrounds over recent months, having a dramatic effect on our daily routine.
As Gene Schirripa explains, employers are confronted with a difficult problem: they must endeavour to reconcile an overarching legal duty to their employees to maintain a safe and healthy workplace for their employees with commercial interests to trade and generate revenue.
The duty to maintain a safe and healthy workplace
section 19 of the Work Health and Safety Act 2011 (ACT) (‘the
Act’) a person conducting a business must ensure, ‘so far as is reasonably
practicable’, the health and safety of its workers.
legislation clarifies the definition of ‘reasonably practicable’ and takes into
account the likelihood of a hazard or risk occurring or the degree of harm that
might result from the hazard or risk ‘at a particular time’.
health and safety legislation deals specifically with managing risks posed by
to ‘particular time’ means that the duty to ensure health and safety is
contingent on circumstances. How the duty to ensure a healthy and safety
workplace looks in practical terms is not fixed. It depends on a number of
factors, with the most important being the nature of work performed.
posed by current conditions is clearly higher for employees who are required to
perform their duties outside, such as tradespeople. Employers must therefore be
more diligent in dealing with employees who are exposed to sustained periods
outdoors, whether it be by providing appropriate equipment (such as face
masks), reducing work hours or even suspending work.
of the Fair Work Act 2009 enables employers to stand down their employees in certain
circumstances, including a stoppage of work for any cause for which the
employer cannot reasonably be held responsible. This would cover recent events.
circumstances, an employer is not required to make payments during periods of
Refusal to work
section 84 of the Act, a worker may cease or refuse to carry out work if the
worker has a reasonable concern that, in carrying out the work, they would be exposed
to serious risk.
circumstances, employers must direct the worker to carry out suitable
alternative work (section 87) until they can resume normal duties.
engage the workplace health and safety regulator to appoint an inspector to
resolve issues that may arise following an employee’s refusal to work (section
circumstances where they are unable to maintain a safe and healthy workplace,
should consider the following solutions in consideration of various commercial
considerations of both their businesses and employees:
- find alternative work for employees that can be done inside an office (on the basis the office is also not smoky and is well ventilated)
- encourage staff to access their annual leave or long service leave during periods of forced shutdown
- determine if other types of leave may be applicable to certain employees, such as compassionate leave (say if family members are affected by bushfires), community service leave (RFS or SES volunteers) or general sick leave if they are unwell.
should also mitigate risks by:
- monitoring air quality ratings and
accept advice from public authorities, including directions by the National Pollutant Inventory
(Australian Government Department of Environment and Energy), which provides
standards and directions with respect to air quality.
- maintaining open and ongoing
dialogue with employees about their health and giving them time to undergo
personal medical examinations.
How can we help?
Please contact our Employment Law team for advice on this and other issues that affect your rights and responsibilities as an employer, by email or on 02 6285 8000.
*The content of this article is provided for information purposes only, and we do not accept any liability for reliance upon the information contained in this article. This information cannot be relied upon as legal advice.