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06 Feb 2020

Extreme weather events, smoke haze and poor air quality: business must take steps to ensure worker health and safety

By Jennifer Wyborn, Charisse Matthews and Ali McMaster

Businesses should create a plan to monitor the level of WHS risks caused by bushfires or extreme weather events, and respond to them swiftly.

Australia is simultaneously experiencing a range of extreme weather events, ranging from bushfires to hail events, extreme flooding to dust storms. The smoke and haze from bushfires in NSW and Victoria has blanketed Eastern Australia for weeks. At the same time, increasingly erratic weather is being seen across Australia, with recent hail in Canberra causing such damage it was labelled a "catastrophe".

Along with the loss of life and property, these events also create risks to workers and businesses, and with increased risks comes increased exposure to breaches of work health and safety (WHS) laws.

The bushfire season is still not over and the risk of non-routine weather events remains. If your business is in an area currently or likely to be impacted by poorer air quality from bushfire-related smoke, flooding, or damage from rain/hail events and/or you have workers working in or travelling through such areas, then you need to take all reasonably practicable steps to ensure their health and safety, or risk breaching WHS laws.

What are the health risks to employees from bushfires and extreme weather events?

The bushfires sweeping Australia have created hazardous levels of air pollution across urban, regional and rural areas. The increase in very small PM 2.5 pollution also poses additional health and safety concerns, especially for vulnerable persons such as the elderly, children, pregnant women, and those with existing health conditions. Additionally, exposure to bushfire smoke has been associated with a number of potential health issues, including heart attacks, strokes, diabetes, neurological conditions and respiratory problems. However, given the unprecedented scale of the current bushfires and smoke, experts are unable to predict the exact long-term health impacts people may suffer.

Those who work outside or in conditions that require increased levels of exertion are obviously at greater risk from adverse health consequences of air pollution, but office workers are not immune, particularly if they work in buildings without air filtration systems.

Extreme weather events may present a variety of risks depending upon their nature – for example, if your site has been affected by storm/hail damage, you will need to assess whether the damage poses risks to your workers, if it is safe for them to commute to work, and if alternative work arrangements are needed.

Whether caused by bushfire or extreme weather events, hazardous conditions may not be limited to just the work environment, with workers also facing risks to their health when travelling to and from the workplace.

What are your WHS obligations?

Under the model WHS laws that apply to the Commonwealth and most States and Territories, a person conducting a business or undertaking (PCBU) has a primary duty of care to take reasonably practicable steps to ensure worker health and safety, while workers are at work in the business or undertaking.

Importantly, this duty extends beyond just a business' employees to also cover workers more generally. This means that if you run a business that also involves the use of contractors, subcontractors, apprentices, trainees, and/or volunteers, you also owe these workers the same primary duty of care.

Under WHS law, more than one person can owe a worker a duty of care. For example, if you use contractors, both you and the contractor's employer need to take reasonably practicable steps to ensure the contractor's health and safety. Where there are multiple duty holders, all duty holders need to consult and co-ordinate with each other to take reasonably practicable steps to ensure health and safety.

Breaches of WHS laws can attract criminal penalties, including substantial fines and imprisonment, depending on the nature of the breach.

Dealing with the WHS risks

If you are a PCBU, you need to think about:

  • the nature of your workforce and whether there are vulnerable individuals in it;
  • the location of work;
  • how workers, including any contractors, subcontractors, and their employees travel to and from work; and
  • what workers do whilst they are at work and the character of your workplace.

Practically, you should conduct a risk assessment to get a better idea of where exactly the risks lie in your organisation, as what each business will be required to do to ensure health and safety will be different between each entity.

Where risks cannot be minimised or eliminated, business should consider whether or not to operate at all. Some organisations have already recognised the unacceptable risks these conditions pose to their workers, and have taken reasonably practicable steps to address them. For example, Australia Post suspended postal deliveries in the ACT in the New Year during a time when Canberra was recorded as being the most polluted city in the world. Similarly, non-essential staff at the ANU in Canberra were directed to stay home following the hail event that recently struck the city.

Air quality

Reasonably practicable steps might include:

  • warning workers of the risk of exposure to poor air quality;
  • regularly testing the air quality in your office to ensure it is safe;
  • allowing workers to work remotely, work from home or take leave;
  • covering the cost of taxis or Ubers to and from work;
  • supplying protective masks that can protect again PM 2.5 particles, ensuring they are appropriately fitted, and supervising workers to ensure that masks are worn;
  • not using evaporative air conditioners which draw air into the building from outside;
  • for those who work outside, consider if there are other tasks they can complete which will allow them to stay indoors;
  • minimising physically strenuous tasks; and
  • regularly monitoring air pollution conditions and adjusting tasks/exposure in response.

Flooding or hail events

Reasonably practicable steps might include:

  • warning workers of the risk of travelling in heavy rain/floodwaters;
  • assessing your site or workplace for water/hail damage that might pose a risk to workers, including any electrical issues, broken equipment, shattered glass, structural damage, contamination, or landsides;
  • arranging for sites to be cleared of debris and assessed as safe before recommencing work;
  • making alternative work arrangements where possible, including directing workers not to attend work if necessary;
  • having evacuation plans ready in case of flash flooding/extreme hail; and
  • similarly for air quality issues, where workers work outside consider if there are other tasks they can complete which will allow them to stay indoors (where safe to do so).

With smoke conditions set to continue over the coming months, all businesses need to consider what risks are posed to their workers, particularly where workers are outside, for example in parts of the construction, agriculture, and hospitality/service industries. The same can be said for businesses considering whether there is a risk of an extreme weather event occurring, and what their plan is for dealing with this.

Failing to address these risks can expose organisations to liability for breaches of WHS laws.

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Disclaimer

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.