Tuesday 26th May 2015
How far can you go to ensure your employees’ health?
|In today's Health & Safety Bulletin:|
- Case law: FWC rules employer’s workplace health regime for drivers is unreasonable
- Are you meeting your obligations under road transport law? Think again…
Sometimes, the road to a FWC hearing is paved with good intentions…
That’s what Cement Australia have discovered, after an attempt to develop a more comprehensive risk review program at work was rebuffed in the Commission. The program’s requirement that part of the workforce be required to attend a compulsory health assessment was held to be unlawful.
On the face of it, that might seem like a surprise. Programs and initiatives to improve or monitor employee health and wellbeing are generally considered a “good thing” – right?|
In high-risk or high-stress workplaces, they can even form part of the reasonably practicable steps your business takes to prevent or minimise exposure to health and safety risks.
With that in mind, here’s an unusual case of where a court will decide that you’ve gonebeyond what is reasonable.
Does your business dispatch, receive or
transport goods by heavy vehicle?
If so, you could be personally liable for breaches of road safety law…without even knowing it.
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|Employers can’t make mass medical health assessments compulsory|
The dispute in Transport Workers’ Union of Australia v Cement Australia Pty Ltd  FWC 158 began when Cement Australia introduced a Risk Review Program after a number of incidents and injuries resulting in lost time in the workplace.
It was intended to proactively address the risk of musculoskeletal injuries, while also helping employees to identify lifestyle factors that would put them at risk.
Cement Australia explained that employees that refused to participate in the assessments could be subject to disciplinary action.
It was not disputed that an employer, where there is a genuine indication of a need for it, can require an employee on reasonable terms to attend a medical examination to confirm his or her fitness.
However, it was held that requiring all employees to participate in a program was not reasonably necessary, and there was no genuine indication of a need for it, as:
Although the Commission recognised that Cement Australia had the right ‘attitude’ behind their initiative, they concluded that the direction for a number of employees to undergo a compulsory health assessment was not lawful or reasonable.
- Many employees already underwent regular comprehensive medical assessments under the requirements of the Heavy Vehicle National Law Act (the HVNL), and;
- The Risk Review Program was being justified on the basis of workforce trends, and not on the basis that there were concerns about any particular employee’s ability to safely perform the inherent requirements of their role.
What you should still be doing to ensure safe sites and healthy workers
Programs for the physical and mental wellbeing of workers can be a proactive way to prevent or quickly control health and safety hazards. What this case shows us is that most of the time, these programs need to be taken up on a voluntary basis.
This in itself may require some cultural changes in the workplace – particularly if your workers tend to be the strong, silent type.
And remember: if you have good reason to believe an individual worker’s illness or injury is affecting their ability to safely perform the inherent requirements of their role, you can issue lawful and reasonable directions to them.
It may involve directing them to attend a medical examination, but can also involve directions where a worker is ordered to comply with a return to work plan.
And if there is legislation proscribing mandatory medical assessments in your industry, your business needs to follow it – and so do your workers.
Are you meeting your legal obligations when transporting goods?
A big concern for Cement Australia was, and is, the health of their drivers. They’re carrying loads of several tonnes on our roads for hours at a time – and everyone else on those roads needs to be sure they’re fit to do so.
Under the requirements of the HVNL, Cement Australia ensures employees have their fitness to be on the road assessed by medical practitioners. These examinations must be taken once every three years for drivers aged 49 or under, and yearly for drivers aged 50 and over.
But even if you don’t employ drivers, you may still have specific road safety obligations too. In fact, if your business receives or delivers your goods by heavy vehicle, you’re already bound by these rules. You have particular obligations to make sure you don’t breach speed, fatigue, or unsafe loading restrictions with your actions.
This law is called “chain of responsibility”. The trouble is, many businesses don’t realise they’re already responsible – and the clock is ticking.
If you’re not sure whether your business is affected, then you should take a look at the free report we’ve recently published, and sign up to our free weekly CoR Bulletin. The report lets you know what chain of responsibility is, and who it creates legal obligations for. Download Understanding Chain of Responsibility here.
Editor, Health & Safety Bulletin
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