Australian Emergency Law has been a bit quiet of late. Not much to report I guess. The Queensland Workers Compensation amendments (the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2015  – see Bills for Presumptive legislation for firefighters introduced to the Queensland Parliament (July 30, 2015) have been passed but they are not yet incorporated into the official online version of the Act (which at the time of writing is up to date at 30 October 2014).   When that happens I’ll revisit the amendments to confirm their effect.

Paramedic registration is still some way off but the Senate has launched an inquiry into the matter and is now calling for submissions (see ‘Senate Standing Committees on Legal and Constitutional Affairs The establishment of a national registration system for Australian paramedics to improve and ensure patient and community safety’). Submissions are due by 29 January 2016.

In the absence of legal reforms that I can report on I wait for relevant questions and this one comes from NSW SES.

As you are probably aware members of the SES have been asking for a “light weight” shirt for some time and whilst the Service has trialled a few over the years we still don’t have one. Our overalls and two-piece uniforms are not suitable for strenuous physical activities in hot weather and it’s quite common for members to just wear pants and T-shirt despite the fact that our Service frowns on this.

As a member of the Vertical Rescue Capability Development Group we have been pushing for this (pants and T-shirt) to be accepted clothing based on a risk assessment for a while but have met with resistance.

The Two-Piece top/jacket really only provides sun protection and some scratch/abrasion protection (there is no need for high visibility unless you happen to be working beside a road etc). Sun protection can also be provided by applying sunscreen. Performing physically demanding activities in warm, humid conditions creates hazards like heat exhaustion, dehydration, fatigue and the wearing of a two-piece top/jacket increases the risk of this.

My view is that we should be assessing the risks and looking to control the highest ones. I found the following on the Canadian Centre for Occupational Health and Safety‘s website which seems to echo this: PPE “must not increase the risk or decrease the worker’s ability to do the assigned job. Wearing PPE should not in itself create a greater danger”.

We are all issued with wet-weather gear but only wear it when the hazard it is designed to protect against (i.e. rain) is present – we’re not expected to wear it all the time, so why should our two-piece tops be any different? Sometimes I feel this is more of a uniform/image issue than a WHS one.

I was wondering if you could provide some comment/advice on this from a WHS/legal perspective?

The quote from the Canadian website can be found in the section ‘Why are there so many precautions about using PPE?’ in their comprehensive fact sheet ‘Designing an effective PPE program’.

The Australian law

The Work Health and Safety Act 2011 (NSW) says that a PCBU must take reasonable steps to reduce the risk to health and safety of workers, including volunteers (s 19). To do that the PCBU must conduct a risk assessment as well as consult with the workforce. My correspondent has identified various risks. I would have thought that in Vertical Rescue risks from abrasions and injuries would be quite high and could lead to serious injuries or at least remove a rescue member from the team. That is not a matter however for me to comment on – the issue is that it is a risk that has to be considered along with the risk that the PPE will make the job harder and create its own risks. It is essential that the PCBU consult with the workers to ensure that they understand how the PPE affects those who have to perform the task (Work Health and Safety Act 2011 (NSW) ss 47-49).

In New South Wales, the implementation of the traditional hierarchy of controls is required by the Work Health and Safety Act Regulation 2011 (NSW) reg 36. It says (emphasis added):

(1) …

(2) …

(3) The duty holder must minimise risks, so far as is reasonably practicable, by doing 1 or more of the following:

(a) substituting (wholly or partly) the hazard giving rise to the risk with something that gives rise to a lesser risk,

(b) isolating the hazard from any person exposed to it,

(c) implementing engineering controls.

(4) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by implementing administrative controls.

(5) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by ensuring the provision and use of suitable personal protective equipment.

(For a discussion of the hierarchy of controls, listen to a ‘Hierarchy of Control podcast’ via the SafetyAtWorkBlog).

Regulation 44 also deals with PPE. It says, amongst other things, that the PCBU that supplies PPE to its workers must ensure that the PPE is:

(a) selected to minimise risk to health and safety, including by ensuring that the equipment is:

(i) suitable having regard to the nature of the work and any hazard associated with the work, and

(ii) a suitable size and fit and reasonably comfortable for the worker who is to use or wear it, and …

(c) used or worn by the worker, so far as is reasonably practicable.

A worker (including a volunteer) must ‘co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers’ (Work Health and Safety Act 2011 (NSW) s 28) and this would include wearing PPE where that is a workplace policy. The need to wear PPE is made a specific obligation under regulation 46 which says:

The worker must, so far as the worker is reasonably able, use or wear the equipment in accordance with any information, training or reasonable instruction by the person conducting the business or undertaking.

The problem with PPE is that it requires implementation by workers.   Workers will get around PPE if they find it is inconvenient or uncomfortable. As the Canadian website says

If a PPE device is unnecessarily heavy or poorly fitted it is unlikely that it will be worn. Note also that if a PPE device is unattractive or uncomfortable, or there is no allowance for workers to choose among models, compliance is likely to be poor. When several forms of PPE are worn together, interactions must be kept in mind. Use every opportunity to provide flexibility in the choice of PPE as long as it meets required legislation and standards.

It may be that poorly designed, ineffective or awkward PPE gives rise to conclusion that it is not ‘reasonably practicable’ to comply with a direction to wear it. Certainly if a PCBU is issuing PPE that is unlikely to be used because it is ineffective, cumbersome or difficult, then the PCBU can hardly say it has take reasonable steps to protect worker health and safety

Discussion

Attached is an image showing firefighters conducting a rescue having removed their jackets. (The photo’s available online but I won’t give my source just to help keep them as anonymous as possible but I’m sure some keen followers of this blog will recognise that the uniforms are from West Australia; I can provide the source if required).

firerescue

I do apologise to those firefighters, and the lad being rescued, for using their photo and I don’t mean to suggest in any way that their conduct was inappropriate. Rather this photo demonstrates the point – firefighters are issued with a range of PPE including jackets, gloves, helmets, hearing and eye protection etc. All very useful when fighting a fire or cutting someone from a car.   But there must be circumstances where it is be appropriate to consider the risks and not wear all the issued PPE. In this case wearing full fire fighting equipment would get in they way, be impracticable and perhaps expose the firefighters to other risks.   In this case the firefighters must have concluded that the risk to their safety (by, for example, scratching their arm against the brick wall) was slight when compared to issues of comfort and need to work in that tight environment. That may be a judgment that others would disagree with but it is hard to believe that this could be considered a failure by anyone to take reasonable care of their own safety as required by the Occupational Safety and Health Act 1984 (WA) s 20(1). It could represent a breach of an instruction to wear full PPE when responding, if such an instruction were in place and were given for ‘the safety or health of the employee’ (s 20(2)(a)).

Where does that leave my correspondent? I can’t say whether it is ‘reasonable’ not to wear full PPE when doing vertical rescue or other SES tasks. Such a judgment can’t be made in the abstract but has to be considered at each job by those competent to understand and consider the risks involved. These are matters for classic risk assessment, what is the risk of not wearing the PPE and how likely are those outcomes v what are the risks caused by wearing the kit when performing ‘strenuous physical activities in hot weather’? Has the SES adopted a policy to require volunteers to wear their two piece kit at all times? Is that policy in place because it advances the corporate image or because it is a genuine outcome of an appropriate risk assessment?

The issue has to be resolved using the prescribed WHS issues resolutions procedures and that, fundamentally, involves consultation between the PCBU (the SES) and workers (including volunteers).

Conclusion

The law requires a worker to wear PPE where:

  1. That the PCBU has undertaken an appropriate risk assessment (Work Health and Safety Act 2011 (NSW) s 18);
  2. The outcome of the risk assessment is that the identified risks cannot be dealt with other than by the issue of PPE (Work Health and Safety Act Regulation 2011 (NSW) r 436);
  3. When conducting the relevant risk assessment and selecting the appropriate controls (including the use of PPE) there are opportunities for workers to be involved in the decision making process (Work Health and Safety Act 2011 (NSW) s 49);
  4. The selection of the PPE has been made taking into consideration the factors listed in the Work Health and Safety Act Regulation 2011 (NSW) r 44; and finally
  5. The PCBU has issued a policy directing that the PPE is to be worn in the circumstances.

If those steps have been followed then a worker is required to wear the issued PPE, but only where it is ‘reasonably practicable’ to comply with that policy. Again the photo from WA may demonstrate a situation where it is not reasonably practicable?