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Working from home safely during a pandemic

March 2020

As Australia commences wide-scale closures of schools and businesses, many organisations face significant challenges in introducing widespread working-from-home arrangements. In addition to substantial challenges from a business continuity and IT perspective, there is also the duty of care owed by employers to take reasonably practicable steps to ensure the safety of staff when being directed or encouraged to work from home. Do you need to determine if it is safe for your staff to work from home? The short answer is yes. If your organisation intends to direct or encourage staff to work from home, for any substantial period of time, then a key question is whether it is safe for staff to do so. Many businesses that already have working-from-home arrangements in place may not find this a challenging issue. However, for some organisations it may be necessary to take additional steps to determine whether their staff are exposed to risks and, if so, how they will be controlled. You should not assume that all workers have a separate area in the house where they can set up a work station and safely work without exposing themselves to risks to their health and safety. This obligation exists whether or not the requirement to work from home is voluntary or at the direction of the employer, for example, arising from a government recommendation. Further, any injury suffered in the course of employment, including while working from home, is likely to result in a potential exposure to a workers’ compensation claim. How do you assess the risks? There are a number of ways an organisation can assess whether there are any home-based risks that need to be controlled for their staff. The selection of risk assessment approaches will depend on factors including: whether the organisation already has a policy in place and tools for undertaking home-based work risk assessments; whether, within the time frames imposed by a government recommendation or direction for an office shut down, those tools can be used or not; the level of experience for affected staff in assessing the risks; and the resources of the organisation to manage any risks identified, including provision of an alternative work location. Some organisations may be able to use internal or external resources to undertake a home assessment for affected staff. However, more likely in the current situation where there are widespread work from home arrangements needed, the most practicable approach will be to ask staff to perform their own self-assessment of the risks at home. This step can be done in a number of ways, including by way of: an employee online/email survey; an employee-completed checklist, potentially with photos of the work station; and an informal discussion with affected workers. Matters that should be assessed include: whether there is an ergonomic work space with good ventilation, light and no electrical hazards; whether there is emergency medical assistance that can accessed; whether there is a readily accessible communication system in place between the organisation and the worker; whether the home has smoke detectors fitted, fire extinguishers available and a first aid kit; and whether safety masks and other hygiene products (such as sanitiser) should be supplied to workers if interaction with third parties is still going to be required. Instruction and training of workers It may be that the direction to work from home will be a new arrangement for many of your staff. In such a case, it is important that you provide sufficient information and instruction to your staff on how they should work safely while at home. In the current circumstances, this instruction should take into account the impact on some workers potentially having to look after children, who are at home due to day care and school closures. The instruction can be by way of a group briefing, emails or more detailed one-on-one instruction. It will also be important to reiterate the access to Employee Assistance Programs during this period, and the potential psychological impact on staff when working in isolation.


Your questions answered: Can employees skip their lunch break and leave early instead?

March 2020

Q I understand that we must provide a 30-minute break for full-time workers, but is the worker obligated to take such a break? For example, if a worker requests to undertake their required hours and leave early, rather than extend their work day to accommodate an additional 30 minutes, can the employer agree to this arrangement? A Meal breaks are not specifically covered in work health and safety legislation. The specific meal break requirements will be dealt with in any modern award or enterprise agreement your workers are covered by. Under health and safety legislation, however, employers have a duty to take reasonably practicable steps to ensure the welfare of their workers. This includes ensuring that your workers receive adequate rest breaks in order to reduce the risk of fatigue. Before you agree to the worker’s request, you should consider the provisions of the relevant modern award or enterprise agreement, as well as the impact that not having a rest break would have on the worker. In particular, you may wish to agree to the arrangement only on a conditional basis, i.e. the arrangement is subject to review if fatigue issues arise.


Misunderstanding causes lifelong damage to worker

March 2020

SafeWork NSW has successfully prosecuted a director of a cleaning chemicals manufacturer for permanently scarring an employee with highly corrosive acid that splashed onto his skin. The company, B&J Industries, failed to ensure that the worker was provided with personal protective equipment. SafeWork NSW reported that the worker migrated to Australia on a temporary work visa and had only been working at the company for two days. The worker was exposed to an acetic acid spill which permanently scarred his skin. The director was fined $40,000 for failing to exercise due diligence. In this case, the worker did not speak English as his first language and there appeared to be a failure to ensure that he properly understood the work process. SafeWork NSW has stated that in response to the concern held for migrant workers, it has developed translated webinars, YouTube videos and written resources to help better inform migrant workers and keep them safer while they are at work. Lessons for employers It is important to assess the nature of your workforce and whether there are vulnerable workers, such as migrants who have limited English skills, or young or new workers such as apprentices. Comprehensive training, instruction and additional supervision (including a buddy) is often required to ensure that the worker is not put at risk.


Your questions answered: What happens if a worker refuses to sign an SWMS?

March 2020

Q We have a worker who is refusing to sign revised Safe Work Method Statements (SWMSs) even though he signed the original documents. How do we deal with this situation? A We would need to understand why the worker will not sign the SWMS. If it has been amended, it is important that workers sign the amended SWMS to acknowledge they understand it. You should explain to the worker that it is necessary for the protection of all persons involved in the work that they acknowledge that they have read and understood the amended SWMS. A failure to sign could also be a failure to comply with a lawful and reasonable direction.


Employer must pay $760K over obese worker’s death

March 2020

In Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited (2020), the NSW Workers Compensation Commission (NSWWCC) found that a worker’s death from a pulmonary embolism was ultimately connected to a back injury he sustained at work. This was even though the worker was overweight and had deep vein thrombosis in both legs and his left arm before his injury. The NSWWCC found that “the weight gained by the deceased worker following his work injury materially contributed to, and was at least a cause of, the development of the deep vein thrombosis that was found at the time of his death and which in turn led to the pulmonary emboli”. Work injury to blame for worker’s weight gain The worker sustained an injury to his lower back in 2011 during a compulsory training exercise, resulting in him requiring five back operations over the following four years. During that time, his weight increased from 100 kilograms to 134 kilograms. While the employer admitted liability for the worker’s back injury, it disputed liability for his death because of his long history of deep vein thrombosis. It referred to a doctor’s report a year prior to his injury which warned of the ongoing health risks he faced with his condition. However, NSWWCC Arbitrator John Isaksen disagreed that “deep vein thrombosis can be isolated and that it is unrelated to the work injury sustained by the deceased worker”. “It is well recognised that a medical condition can have multiple causes and what must be determined is whether the work injury is the cause of a condition which results in the death of the deceased worker,” he said. “The deceased did have an increase in weight following the work injury due to his inactivity and the weight gain did contribute to the deep vein thrombosis which caused the pulmonary emboli and the subsequent death of the deceased worker. “There is an unbroken chain of events from the work injury sustained by the deceased worker to the pulmonary emboli which caused his death.” Arbitrator Isaksen ordered the employer to pay $760,000 to the deceased worker’s estate, as well as $3,735 to his mother for funeral expenses.


Your questions answered: Must we provide defibrillators at work?

March 2020

Q What are your views about providing defibrillators in the workplace? We have about 60 sites, most located within easy reach of GPs and hospitals. Our business is involved in social work and administration. All our sites have first aiders. I am regularly questioned about defibrillator provision and respond from a risk approach. We feel that the cost of providing the equipment, parts replenishment and staff training would be unreasonable as there has never been an incident requiring their use in 8 years. A You are not specifically required to have a defibrillator in your workplace under health and safety legislation. While the provision of first aid equipment should be tailored to your working environment, generally for some high-risk workplaces, specialised devices such as defibrillators may be required. A workplace that features at least one of the following hazards will be considered high risk: hazardous substances or machinery; working at heights; hazardous work, e.g. demolitions; working in confined spaces; electrical work; work conducted in extreme temperatures; and work that involves a risk of exposure to physical violence, e.g. working with convicted criminals. Although it would appear that you do not operate a high-risk business, you should undertake a risk assessment and if there is a significant risk of cardiac arrest in the workplace. One control to implement may be to make a defibrillator available.


Your questions answered: Are we required to report asbestos to regulators?

February 2020

Q What do we have to report to regulators about asbestos (both friable and non-friable) at our workplace? I have been told by some people that sites containing a minimum of 10 square metres of bonded asbestos have to be reported to SafeWork NSW. A There is no requirement to report to SafeWork NSW the existence of bonded asbestos at all. While the existence of the material will be contained in your asbestos register, this register does not get reported to SafeWork NSW (although it must be available for inspection). The reference to 10 square metres of bonded asbestos relates only to asbestos removal work. There is an exemption (see clause 458 of the WHS Regulations) from having to engage a licensed asbestos removalist (LAR) if the material is less than 10 square metres of non-friable (that is, bonded) asbestos. This has nothing to do with notification per se from your point of view. But in NSW, a LAR does have obligations to report the presence of asbestos to the regulator. These obligations stem from the WHS Act and Regulations, and SafeWork NSW Codes of Practice: How to Safely Remove Asbestos and How to Manage and Control Asbestos in the Workplace. Before licensed asbestos removal work can be commenced, a LAR is required to inform SafeWork NSW in writing of the work five working days beforehand. Then, if and when respirable asbestos fibre levels at more than 0.02 fibres/ml are found in the removal area, the LAR is required to notify the regulator immediately.


‘No jab, no job’ workers told

February 2020

Under new Victorian laws, it is now mandatory for all frontline healthcare workers to be vaccinated against the flu, chicken pox, hepatitis B, measles and whooping cough. These laws apply to workers in public and private hospitals and ambulance services with direct patient contact, including doctors, nurses, paramedics, dentists, orderlies, cleaners, as well as staff working in public sector residential aged care services. Workers who refuse to be vaccinated can face work restrictions or redeployment to other parts of the health service. The Victorian government says these laws will protect healthcare workers from preventable diseases and reduce the risk of transmission to the most vulnerable such as children, the elderly, pregnant women and people with chronic diseases. Last year, an unprecedented 69,000-plus laboratory-confirmed flu cases were recorded in the state. “We are taking the fight against the flu and other preventable diseases further by making vaccination compulsory for healthcare workers,” Victorian Minister for Health Jenny Mikakos said in a media release. “Last year’s flu season was our worst on record – highlighting why it’s so important our staff are protected against infectious diseases, so they can continue to provide the best care for patients. “Ensuring our dedicated healthcare workers are vaccinated provides them with a greater level of personal protection, while also reducing the spread of diseases to vulnerable patients.”


Your questions answered: What is ‘a prescribed person’ and ‘a person of a prescribed class’?

February 2020

Q The NSW Work Health & Safety Act 2011 and the federal Work Health & Safety Act 2011 refer to ‘a prescribed person’ and ‘a person of a prescribed class’? These aren’t in the definitions. What does this mean? A The reference to ‘a prescribed person’ and ‘a person of a prescribed class’ is not defined because it is a legislative device that allows the Minister to make a regulation which will give it (or prescribe) a meaning. If such a regulation is passed, it will prescribe a meaning for the particular section of the Act, or clause in the regulations. If you cannot find a regulation which prescribes a meaning for any particular section, then there has been nothing prescribed yet by the Minister.


Coerced crossdressing caused psychiatric injuries, worker claims

February 2020

A worker is suing his employer for psychiatric injuries after being “obligated to dress up dance and sing” onstage at a business conference. The Sussan employee claimed he was coerced into wearing “gold hotpants, a bikini top and a pink cowboy hat” over his suit. The case was scheduled to be heard last year, but about two weeks before, the worker then tried to add damages for battery to his claim, because he had been grabbed and pushed towards the stage. The worker’s application to amend the claim was denied. His appeal of that decision was also refused. Employer performed ‘voluntarily’ The worker claimed the employer was vicariously liable for the stress and humiliation the incident caused, which resulted in him later suffering from panic attacks, anxiety and depression. In its defence, the employer submitted that the worker performed onstage voluntarily and was not directed or obligated to do so. It further argued it could not reasonably foresee the worker suffering a psychiatric injury as a result of those actions. Seeking additional damages for battery, the worker further alleged he was pushed and pulled with “such force that had he struggled to free himself … and the batteries were thereby physically threatening to him”. He also alleged many other employees had “aided and abetted” the batteries by cheering in the form of “woo-hoos”. Too late to amend claim The Victorian Supreme Court bench dismissed the appeal of the County Court’s decision to deny amending the claim. “[The employer] would, clearly, suffer irremediable prejudice, by being faced with a new claim, at a particularly late stage of the proceeding, which it was unable to properly investigate,” the Justices said. Moreover, the Justices noted that the worker did not provide “any proper explanation for his delay” in amending the claim. “Indeed, it was conceded by counsel for [the worker], on the application, that nothing new had been revealed, and nothing had changed, which had necessitated the proposed amendment,” they said.


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