Employees’ OHS responsibility and working beyond the maximum hours

One of the most powerful motivators for behavioural change in workplaces is the legislative obligation on employees to not put themselves at risk of injury nor to act in such a way as to place others at risk.

Reported in the Australian media on 31 March 2010, Fair Work Australia has ruled that employees in the fruit-picking industry may volunteer for work beyond the standard 38-hour week without receiving penalty rates or overtime.  The union movement is understandably concerned about how this financially disadvantages workers and how this ruling may spread beyond the fruit-picking industry.

The ruling allows fruit-pickers to choose to work beyond their regular shifts.  Will they be able to work safely?  Will they not be fatigued?  Will they have sufficient daylight to undertake the tasks safely?  Will there be sufficient downtime for workers to recover from a long work day and be fit for work?  Could the workers’ choice to undertake additional fruit-picking tasks be a breach of their OHS obligations to look after their own safety, health and welfare?

The employees may choose to ignore their own occupational health for the sake of additional dollars but should they then be eligible for workers’ compensation if the effects of those longer hours are found to have contributed to an injury or illness?

What safety management will the employer apply?  Will the employer refuse an offer of additional hours on the grounds that the workers have already performed a full day’s work and need to go home and rest for the next shift?

Occupational health and safety law and management is increasingly focusing on the psychosocial hazards of work – stress, mental health, depression, fatigue, cognitive function, distraction.  The validity of many of these psychosocial elements needs to be explained to employers.  But will employers accept this information or will it generate a disparaging response from them with accusations of “OHS gone mad”?

In many ways psychosocial hazards is the “OHS that dare not speak its name” because if workers do, they will seem like a prat and their unwillingness to put themselves in potentially hazardous situations will be interpreted as an unwillingness to work.  In fruit picking with a high casual or seasonal workforce, the labour contract may seem more fragile and the impression one gives to “the boss” may be more important than in other industries.

A huge amount of groundwork needs to be undertaken by the Australian Governments to educate employers on the legislative obligation on all workers not to put themselves in harm’s way.  This must be explained in the context of psychosocial hazards or else the new Australian OHS laws will be seen as a joke, as an example of the “nanny state”.

It is one thing to refuse to work an unguarded machine or to not use a rickety fruit picker’s ladder on the grounds of safety.  It is another to refuse additional hours on the basis one is tired or stressed or “just not up to it today”.  The workers may have the right or the obligation to refuse tasks on the grounds of safety concerns but the employers must be sufficiently educated on OHS management to understand the context of a worker’s refusal and to accept the legitimacy of the decision.

It seems that the OHS component of additional hours is missing from the debate.  Sure employers may accept the additional hours of work offered by the employees but would doing so make the work environment unsafe?  Would the employer be breaking their duty of care by accepting the offer?

Kevin Jones

3 thoughts on “Employees’ OHS responsibility and working beyond the maximum hours”

  1. When the government develops policies like these are they meeting with the affected workers to gauge reaction before implementation?

    Cheers!

  2. The workplace regardless of additional hours should always be safe. The employee and teh employer both have a responsibility of maintaining saftey in the workplace. So many things would factor into the question of saftey.

  3. The majority of employment agreements incorporate a clause that states that an employer may ask an employee to work reasonable overtime given reasonable notice. The issue is what is \”Reasonable\” and from my perspective that is a medical question when it comes to OHSW.

    Guidelines developed by the medical profession for employers showing what is reasonable for a broad class of workers in terms of physical and mental capacity issues would be a great help. It would also give workers a guide to what is reasonable for an employer to request, as well as provide valuable information in the determination of injury claims where an injury claim is based on excessive overtime being the primary cause. Para medical professionals should only be involved in the periphery of the development of guidelines this is one for senior specialists in a variety of disciplines to agree on. It falls into the category of risk assessment which harmonised law will cover.

    All of these laws have been contemplated and enacted so we don\’t have to worry about reinventing the wheel, just identify the tools for people to use and make sure they use them.

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