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

Pursuant to 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.

The 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’.

National workplace health and safety legislation deals specifically with managing risks posed by airborne contaminants.

The reference 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.

The risk 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.

Stand down

Section 524 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.

In those circumstances, an employer is not required to make payments during periods of stand down.

Refusal to work

Pursuant to 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.

In those circumstances, employers must direct the worker to carry out suitable alternative work (section 87) until they can resume normal duties.

Employers may 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 89).

Practical solutions

Employers, in 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.

Employers 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.