2016 was the hottest year on record in Australia. January/February has seen regional centres record their hottest days with temperatures approaching the high 40’s in Victoria, NSW and Qld.
Therefore now is an opportune time to revisit the issue of employer obligations to staff engaged in physically challenging activities in enclosed environments or the outdoors.
Under the Fair Work Act 2009 employees can be sent home if there is no useful work for them to do, due to:
- Equipment breakdown;
- Natural disaster (including floods, tropical cyclones or bushfires);
- Industrial Action.
Concurrently, employers are obliged to provide weekly employees with leave of absence without loss of continuity of employment if the employee is engaged in ‘Community Services’, (e.g; SES members or Volunteer Firefighters). This obligation arises under the universal ‘National Employment Standards’ (NES).
The right to “stand down” is tempered by the terms of either an Enterprise Agreement or a Modern award, which would otherwise apply to the particular workplace.
In the absence of specific provisions in an award or Enterprise Agreement, as a general principle, if an employer stands down an employee because of the impact of a natural disaster on their business (or excessive heat), they don’t have to make inclement weather payments (‘inclement weather’ being defined as when it is unsafe or unreasonable for an employee to work because of severe weather conditions).
The terms of a ‘Common Law contract’ do not override the employer’s duty of care to provide a safe working environment on all occasions. Therefore even though a published company policy may be intended to broadly define the operational envelope in which the employee is expected to work; ultimately, a Court will determine what is (was) “reasonable”, based on the totality of the facts presented to it. Unfortunately, this usually arises at the point of death or injury to the employee, and or, others that they are responsible for.
What best to do:
As indicated, an employee is not entitled to be paid during a ‘stand down’. However, an employer can choose to consider other options that will allow an employee to be paid.
The employer could, if they so choose:
- Let the employee(s) take a period of paid leave, such as Annual Leave*;
- Allow work at another location (such as from home or another worksite);
- Perform other duties that they are competent to perform;
- Drawn-down accruals of ‘Time Off In Lieu of Overtime’ (TOIL) – as prescribed in an award or Enterprise Agreement.*
(* Does not apply to casual employees).
Any short-term arrangement put in place to avoid a disruption to an employee’s income stream, should be confirmed in writing as soon as practicable, after the event, so as to avoid any future disputes as to accruals or entitlements.
It is recommended that you put in place an action plan that can be implemented with little notice; ensure that all employees (current and prospective), are fully versed on what will happen in the event of a heatwave, fire, flood, storm or other natural disasters.
Further, ensure that individuals with authority to act, are clearly identified and the appropriate (quickest), means to contact them if & when an emergency arises.
Regularly review the contents of the plan to ensure that it meets the operational needs of the organisation.
Make this plan an integrated element of your OH&S policies and procedures.
Finally, if in doubt in regard to your specific obligations - get advice, either through a practitioner, such as HMT Consulting (www.hmtconsulting.com.au ), or the Fair Work Ombudsman (www.fairwork.gov.au ).
“In a major coup for ASSA, it has exclusively retained Michael Taylor, of HMT Consulting, for its Workplace Relations Advisory Service. ASSA believe Taylor to be the national expert on the Fitness Industry Award – and even more-so when it comes to Swim Schools. He and Gage were at the forefront of the establishment of the Award sections pertaining to Swim Schools, being instrumental in getting the one hour minimum term of engagement for casual swim teachers – among other benefits for employers. Both are currently jointly appearing before the Commission’s 4 yearly review – submitting and discussing re casuals, broken shifts and definitions.”
Australasian Leisure Management Magazine
Many small to medium-sized businesses are experiencing difficulties in an ever increasingly competitive environment; gaining and maintaining the best from your team is fraught with many challenges, some of which are explored here.
Michael Taylor - Principal Consultant, HMT Consulting.
Overview: (from a legal perspective):
An employer has the option of setting out an employee’s obligations in express terms in the form of a common law labour contract. However, regardless of whether such a document is produced and signed by both the employer and the would-be employee, there are certain fundamental duties imposed on all employees;
Above all else, consistency, transparency and excellent communications are the keystones to managing performance in the modern workplace
An escalating problem. By Michael Taylor – Principal Consultant, HMT Consulting.
A recent decision by a member of the Fair Work Commission (F.W.C), that it was “not unjust or unreasonable” to require employees to provide oral fluid (saliva) and urine samples as part of a bona-fide workplace drug testing regime, canvassed many issues in regard to this urgent and escalating workplace matter.
Commissioner Cambridge had intervened as a consequence of a dispute notification by the CFMEU, pertaining to the provisions of an enterprise agreement (CFMEU V Port Kembla Terminal Ltd).
The union argued that the initiative of the employer in seeking to implement a testing regime [albeit, one that was underpinned by the ‘Alcohol and Other Drugs Standard’ (AOD Standard)], particularly in relation to urine sampling “involved an illegitimate interference with the privacy of an employee…. As urine sampling identified an employee’s historical use of drugs which may bear no relevance to their capacity to safely perform work.”
For its part, the employer was strongly of the view that the Commission should not interfere with “the right of the employer to manage its operation in a manner which it believed properly discharged its obligations to provide for a safe workplace.”
Points of consideration and findings:
The dispute involved a contest about the utilization of urine sampling as part of a workplace drugs regime. The debate focused on whether urine or oral fluid, was the most appropriate method of sampling for workplace drug testing. Expert evidence was led and reference made to recent, significant, cases touching upon the nature, scope and targets for testing.
It has been established by Industrial Tribunals that “oral fluid testing is more focussed on acute impairdness, whereas urine testing is more likely to uncover patterns of drug use which may lead to levels of impairment and safety concerns.”
A FWC full bench has determined that “on the one hand, there is the interest of employees in not having their private behaviour subject to scrutiny by their employers… On the other hand, there is the interest that employers and employees have in ensuring a safe working environment by the taking of all practically available measures to detect and eliminate or manage risks to safety. Both employers and employees….are subject to statutory duties concerning workplace safety, breach of which may result in criminal liability, and employees exposed to the possibility of injury or death if workplace risks to safety are not identified and either removed or controlled.”
Commissioner Cambridge reinforced this view in finding in favour of the employer’s testing regime; “…. Any discomfort or embarrassment about providing a urine sample would be of negligible consequence if such discomfort or embarrassment avoid death or debilitating injury suffered at work. The balance, in my view, would overwhelmingly favour the benefits of adoption of a superior drug detection and deterrence mechanism for the cost of the discomfort, inconvenience or embarrassment of having to provide a urine specimen…”
In this instance, FWC also took heed of the following points:
- In workplaces where occupational and public safety risks are present, drug and alcohol testing require mechanisms which improve safety for workers and the general public;
- Individuals who attend “high risk” workplaces under the influence of drugs or alcohol, at a level of recognised impairment, are likely to endanger the lives of others;
- Drug or alcohol addiction or abuse issues which have been identified through workplace testing, should be recognised as problems that require a treatment program and not necessarily disciplinary action;
- It is unrealistic to attempt to codify workplace drug testing by way of universal rules;
- The particular facts and circumstances of each case of drug detection in the workplace need to be carefully assessed and judged accordingly. This particularly in relation to the detection of the “hangover” effects of drugs like methamphetamine (this being just one example where there is a compelling basis for detecting long-term drug use).
ICE in the working environment:
The Commissioner’s comments coincide with rising concerns about the level and effects of crystallised methamphetamine (ICE) in Australia workplaces. In a recent radio interview the National Secretary of the Construction Division of the CFMEU, Dave Noonan observed that:
“This is one drug that’s changed the game. For people operating dangerous vehicles or machinery, it creates a toxic combination. During the high, users experience a surge of overconfidence and see themselves as invincible. Then the crashing low that follows brings sleep deprivation, blurred vision and fatigue.”
Concurrently, Victoria Police have reported an increase in truck drivers being tested and found to be under the influence of ICE.
Unfortunately experts acknowledge that most drug tests may not capture the full impact of this drug. The problem being that metahamphetamine is eliminated from the body much faster than recreational drugs such as cannabis. This means that rostered workers coming back from several days off-duty may be returning ‘clean tests’ and therefore it may be the case that usage of the drug is under-documented.
However, as debated in the case before Commissioner Cambridge, urine, blood and saliva testing can each detect drugs other than alcohol, however, each has its own advantages and disadvantages.
This brings into focus the need to foster a ‘no tolerance’ policy in the workplace; this goes beyond simply introducing a random testing regime for the occasional “gotcha moment”, with the intention of building a case for a summary dismissal.
The more profitable approach, in terms of costs and workforce welfare is to create a strong workplace culture ‘where turning up clean to work isn’t just some rule from on high – but a standard a worker’s peers and colleagues expect and support.”
Two foundations for such a culture are:
- Education programs underpinning the negative health effects of drugs and alcohol, particularly with reference to the workplace. The provision of training to supervisors, managers and OH & S Representatives in how to recognise signs of intoxication, and how to approach a person affected with drugs and alcohol.
- Development and application of a set of policies designed for the specific needs of your workplace (which may or may not incorporate a drugs testing regime). However, it is strongly recommended, that they should provide counselling and support services for those individuals who acknowledge that they have an addiction problem.
Appropriate structures must be put in place, to ensure all stakeholders are aware of who to go to as situations unfold, and who is authorised to act and in what circumstances.
Policies, procedures and structures should be reviewed regularly, particularly in light of new or developing social challenges (such as ICE).
Drug and alcohol abuse (addiction) is a significant challenge to all workplaces, especially to those delivering water safety education or supervising aquatic facilities, leading outdoor recreation groups, or operating amusement rides. They share many common elements - people (particularly youngsters or the elderly), hazardous environments, complex electrical and or mechanical systems, all requiring a high level of supervision in unusual (challenging) settings. All share the same duty of care.
Drugs & alcohol are not matters of concern only to the operators of airlines, railways, mines or long haulage fleets.
Acknowledgement: some material appearing in this article was sourced from “Is your workplace drug policy doing enough to fight ‘ice’?” – by Joseph Nunweek – Health & Safety bulletin.
Dehydration is a major risk associated with prolonged, strenuous, outdoor activities which can include professional and recreational water sports. The risk is compounded in hot weather, and if not managed appropriately can have major consequences.
What is Dehydration?
Dehydration is simply loss of body fluid, primarily through sweating.
Our bodies contain, on average, 60% water, 40% of which is stored in muscle.
As little as a 2% decrease in body fluid can result in dehydration which will have a detrimental effect on sport performance.
In an exercise situation profuse sweating and rapid expiration can cause dehydration.
Excessive sweating does not only cause fluid loss but also a decrease in the level of electrolytes, mainly sodium and potassium. Sodium is essential for fluid retention and potassium is responsible for nerve and muscle function. If the levels of either or both become sub-optimal the body is unable to function efficiently and problems can occur, ranging from muscle cramping to, confusion and in extreme cases, heart and kidney failure and even death.
Signs of Dehydration:
The foremost treatment for dehydration is prevention.
On average our bodies require 2 - 2½ litres of fluid per day to maintain adequate hydration levels.
Sweating, increased activity and heat stress will cause fluid loss therefore fluid intake should equal or preferably exceed the amount lost.
An adequate intake of water will be sufficient to prevent dehydration in normal circumstances, however in hot weather, or during periods of increased physical activity where there is a danger of extreme dehydration occurring, water alone will be inappropriate. The body requires sodium in order to retain fluid so therefore a higher intake of fluids with the correct balance of electrolytes and carbohydrates, in the form of sugar, will be required.
It should be noted that fluids which are high in sugar are not ideal as these could potentially worsen the degree of dehydration, therefore fruit juices and some Sports and Energy drinks should be avoided if possible.
Alcohol and caffeine containing drinks are not ideal as these will only increase the level of dehydration because of their diuretic effect.
Thirst is one of the last manifestations of dehydration and as exercise blunts the thirst mechanism it is therefore essential to be conscious of the need to rehydrate during periods of physical activity.
The Outdoor Recreation Industry operates over a wide spread of hours and in very challenging conditions. Employees are routinely called upon to work extended periods “in the field”, and often in remote locations, well removed from their home-base. Coincidently, Outdoor Leadership entails the delivery of training to novices, relating to complex/ physically and often demanding activities, in hazardous conditions.
The combination of the environment, nature, and the organisation of the work, pose significant challenges to the workforce and those who manage them. This article explores the ramifications.
Custom & Practice:
Whilst the Fair Work Act 2009, and the Modern Awards made in accordance with its dictates, anticipates ordinary hours being worked over an average (over four or six weeks) of thirty eight, with undisturbed periods of eight to ten hours between work on consecutive days; the Outdoor Recreation Sector works to a very different model.
Periods of work are organised around shifts easily exceeding the award-base “norm” of eight to ten hours, over a span of nine to eleven consecutive hours (inclusive of unpaid breaks). Often enterprise-specific arrangements facilitate work being scheduled:
- over spans of twelve to sixteen consecutive hours, rostered in blocks of two or more periods per day;
- regularly exceeding thirty eight over seven days;
- on more than six consecutive days.
Sometimes distinctions are drawn between “active” and “passive” time; the former involving the provision of training or support to Clients (being paid time) and the latter involving rest periods,(that entail the employee being available to meet extenuating circumstances, with little or no delay), and or, traveling to and from remote locations (being unpaid).
Working long and irregular hours associated with physically and or mentally arduous activities can pose significant health and safety risks, as well as organisational risks. Employers have obligations to minimise these risks to workers, and clients, alike, stemming from a general duty to provide safe systems of work and a safe working environment.
From a health perspective; stress, fatigue, depression, headaches, high blood pressure and increased risks of developing stomach ulcers and heart disease, can all be contributed to by poorly designed and managed patterns of work.
From an organisational perspective, productivity and efficiency suffers, often manifested by:
- Increased absenteeism and higher than average staff turnover;
- Degraded staff morale;
Prolonged work periods often see employees at their least competent and watchful, therefore vulnerable to making errors of judgement if unexpectedly recalled to duty to address an emergency. Further, hand-over arrangements suffer, as essential information to ensuring a transition from one team to the next is prone to being overlooked, incomplete or miss-communicated, increasing the potential for mischance/accidents.
Team members who have worked continuously for 8-10 hours in a remote location, are not the best candidates to act as drivers for people and equipment back to home-base.
Whilst payment can be an inducement to perform “over and beyond”, dollars cannot reduce the loss of efficiency associated with fatigue.
Acknowledging that organisations in Outdoor Recreation are routinely dealing with a diverse group of Clients, with significantly different needs/requirements; the following framework is recommended in relation to the organisation of “scheduled” work:
- Work should be rostered over not more than six consecutive days (and ideally not exceeding 48 hours of ‘active’ duty);
- Minimise the number of occasions where either active or passive activities are required over seven consecutive days;
- Shifts of twelve or more ‘ordinary hours of active duty’, should not be rostered over more than four consecutive days;
- Keep work requiring both day and night active duty to a minimum – if a program has an “after dark” component, consideration should be given to having a specific team to cover these requirements; concurrently, a nominated team member(s) should be rostered on “standby”, to cover any night time contingencies;
- Periods of active duty ,(either scheduled or unscheduled – in the case of ‘call-outs’), should be separated by at least eight continuous hours off-duty, before the commencement of any further work. This is an imperative for team members undertaking high-risk work;
- Ensure that team members have sufficient (paid or unpaid) breaks during work periods, particularly those working shifts in excess of eight hours, in inclement conditions, or undertaking high-risk work;
- Always ensure that time is allocated to ensure that there is an effective hand-over between work teams; (co-incidentally, documented ‘hand-over policies’ should be put in place well beforehand);
- Either prior to engagement, (in the case of casuals), and or on each occasion (in the case of weekly employees), that a program is delivered or assignment undertaken, ensure that a formal ‘fitness for work assessment’ is implemented in relation to all team members, from the Supervisor down. At the very least this should entail observing and communicating with the workers to ensure they are able to perform their allocated tasks, in the environment, within the timeframe required, and using the available resources.
A final point; stress and fatigue related issues impact equally on team members, regardless of their employment status, or history. On occasions, unfortunately, casual employees are treated differently to ‘permanent’ team members in relation to rostering. This is a counter-productive, and potentially dangerous.
Many employers in the Fitness, Leisure, Retail and Hospitality sectors require maximum flexibility to ensure the continuing success of their businesses.
Significant numbers have plumped for ‘casualised’ workforces when faced with dynamic market conditions for their goods or services. In the process, some have fallen foul of recent developments in workplace law by overlooking obligations they assumed they did not incur through engaging (regular) casuals.
A casual employee has traditionally been viewed as an employee who is employed to perform work on an “as needs” basis, without a regular work pattern.