This question from a Victorian paramedic concerned about rising violence in that industry. This question is about:
… the legal responsibility of an employer to provide personal protective equipment (PPE) to its employees. Specifically, with the increase in assaults towards paramedics across all states and territories I am interested in the employers responsibility to issue protective vests to frontline staff. I purposefully use the term protective vests as opposed to stab vests as the majority of assaults are of blunt force nature, although threats with weapons are also on the increase.
Who decides the level of perceived or actual threat/risk needed before PPE can be issued?
If an employee feels the need to use extra PPE (in this case a protective vest) is the employer under any obligation to provide this? or is it up to the employee to personally provide such an item for their own use?
If an employee does choose to wear such PPE can the employer order them to not use or wear said PPE even if it is not visible above their issued uniform?
… I have already made enquiries in the state of Victoria surrounding the legalities of purchasing and owning such equipment due to it being restricted and have written confirmation from the Department of Justice that I would be within the law to own and wear a vest for the purpose of carrying out my legal duties.
The starting point is the Occupational Health and Safety Act 2004 (Vic) (Victoria has not come on board with the adoption of the uniform Work Health and Safety laws that most of the other states have adopted). The Act says (at s 21):
An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.
That is not an obligation to guarantee safety, but to provide a safe work place ‘so far as is reasonably practicable’. In deciding what is ‘reasonably practicable’ regard must be had to:
(a) the likelihood of the hazard or risk concerned eventuating;
(b) the degree of harm that would result if the hazard or risk eventuated;
(c) what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
(d) the availability and suitability of ways to eliminate or reduce the hazard or risk;
(e) the cost of eliminating or reducing the hazard or risk. (Occupational Health and Safety Act 2004 (Vic) s 20).
It is not obvious that the risk of violence to paramedics requires the provision of what I shall, for ease of reference, call a ‘stab vest’. To determine that would require an actual study of the risks – is violence actually increasing? If so is it the sort of violence that they would help protect the wearer? How much does it cost? What other solutions are there (in the hierarchy of OHS solutions PPE is the last solution (see NSW WorkCover ‘Hierarchy of Controls’ (http://www.workcover.nsw.gov.au/formspublications/publications/Documents/yw_heirarchy_controls_2089.pdf).
So who’s to decide? At first instance it has to be the employer as they have the duty under s 21 but to fulfill their duty they have to consider the matters listed in s 20 and they need to consult with their employees (s 35). If employees feel that a ‘stab vest’ is warranted then they should look to use the consultation processes (s 36) to bring the matter to the attention of ambulance management. The matter could be raised with an occupational health and safety representative or via the OHS Committee. (Naturally it would help if the staff could point to the issues in s 20 to show that the issue of PPE is a reasonably response to a real risk.)
If the parties cannot reach an agreement (eg if the staff want stab vests and management refuse to countenance them) then an inspector may be required to attend the workplace (ss 73 and 75). The WorkCover Authority ‘may give advice to a person who has a duty or obligation under this Act or the regulations about complying with that duty or obligation’ so the Authority could give advice to the Ambulance Service about whether it should provide stab vests or at least the process it should go through to consider the issue.
An inspector who believes that there is a contravention of the Act may issue an improvement notice requiring that the contravention is remedied, so the inspector who attends could, if satisfied that the issue of stab vests, all things considered, was required to comply with the duty under s 21 could issue a notice requiring that the vests be issued.
Finally it is an offence to fail to provide a safe workplace so if the employees felt that it was the only reasonable response to the risk and the ambulance service refused to provide the vests, the staff through their union, or WorkCover could prosecute the ambulance service. Tragically that course of action would probably require someone to be stabbed first.
In WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2)  NSWIRComm 90, NSW Police was prosecuted following the shooting deaths of two officers in an incident at Crescent Head. One of the allegations was that the police failed to provide a safe workplace as it failed ‘to provide a speed loader that contained six rounds of ammunition which allowed for the ammunition to be loaded directly into the service revolver’ and/or failed to provide police with ‘a self loading firearm handgun with magazine’ . The gist of the argument was that the then standard issue police revolver was not adequate when faced with a heavily armed offender so that if the officers had this equipment they would have been better able to defend themselves. Both the charges were dismissed as there was no evidence that in the circumstances the speed loader or ‘glock’ automatic weapon would have made a difference to the outcome or the risks that the officers faced when confronted by a heavily armed offender who was willing to use those firearms with fatal effect.
The point of that story is that here is (or was) a safety issue that had been the subject of negotiation. The police did not provide that equipment (though I think most police services now issue operational police with automatic pistols rather than revolvers) and who ultimately decided the issue? The court, because the obligation to comply with the law must always, ultimately, be judged by a court. A prosecution can be brought under OHS law without a death or injury but it is much easier to prove there was a risk that need to be dealt with when it has eventuated.
So let us return to our questions: Who decides the level of perceived or actual threat/risk needed before PPE can be issued?
At the first instance it is the employer in consultation with employees, but ultimately it is a relevant court.
If an employee feels the need to use extra PPE (in this case a protective vest) is the employer under any obligation to provide this? Or is it up to the employee to personally provide such an item for their own use?
An employer is not obligated to provide whatever PPE an employee wants. That may be quite unreasonable – a police officer may want a M16, a fire fighter a different model of fire appliance or BA etc. As a university academic I may decide the students are getting too close so I want a gun. The employer is required to provide that PPE that is reasonably required to ensure a safe workplace taking into account all the factors listed in s 20 and also taking into account that PPE is the safety control of last resort.
If an employee does choose to wear such PPE can the employer order them to not use or wear said PPE even if it is not visible above their issued uniform? You do have to obey the reasonable instructions of your employer so the issue would be whether that was reasonable. The critical point though from the preceding discussion is that there are OHS consultation procedures and like all consultations they may lead to compromise, so if the discussion starts in the OHS committee it may come down to the service saying they will not provide a stab vest but won’t stop staff wearing one if they want to buy one.