Legal Insights

How do you keep your workers safe in the heat?

By Bruce Heddle, and Christine Maibom

• 28 February 2024 • 6 min read

This article reminds employers of the key PCBU duties concerning the management of risks to the safety of workers caused by heat, with reference to a number of recent prosecutions across Australian jurisdictions.

Australians have been experiencing another long, hot summer and extreme temperatures (which have been exacerbated due to high humidity) are continuing across the country.

It was only a month ago, on 11 January 2024, that Sydney recorded its highest ever level of humidity. In parts of Victoria, residents have been dealing with extremely hot, dry, and windy conditions, similar to what was seen during the Black Summer Bushfires in 2019/20.

Extreme temperatures, in turn, create extreme, and potentially hazardous, work conditions for some workers. Related safety risks can include exposure to high UV radiation and humidity, hydration issues and poor airflow/ventilation.

At the end of last year, safety regulators urged employers to have a plan to ensure that workers can work safely through the heat of summer. So the question arises – is your workplace prepared to manage extreme temperatures? Whether outdoors, or indoors, excessive heat at work is a risk to the health and safety of your most important asset – your workers.

Excessive heat impacts the capability, productivity and capacity of workers, and may lead to injury or even fatalities if appropriate systems and controls are not in place.

A refresh of PCBU duties

PCBUs have a primary duty under work health and safety legislation to ensure the health and safety of workers. This requires PCBU’s to eliminate risks to health and safety to the extent reasonably practicable (or minimise risks if elimination is not reasonably practicable). Employers can do this by ensuring, so far as is reasonably practicable, the:

provision and maintenance of a work environment without risks to health and safety
provision and maintenance of safe plant and structures
provision and maintenance of safe systems of work
safe use, handling, and storage of plant, structures and substances
provision of adequate facilities, and access to facilities, for the welfare at work of workers in carrying out work
provision of necessary information, training, instruction or supervision to protect persons from risks to their health and safety arising from work carried out
health of workers and the conditions at the workplace are monitored to prevent illness or injury of workers arising from the conduct of the business or undertaking

There are also a number of other PCBU duties which are important to remember – including a duty to consult with other PCBUs where multiple PCBUs have duties in respect of the same workplace. As we will see in one case below, multiple PCBUs can be prosecuted for failures in relation to the same risks.

In some jurisdictions, PCBUs also have an express duty under work health and safety regulations to ensure ventilation for workers who carry out work in extreme heat.^[1]

Prosecutions

Bradford Clark Rosten [2020] Magistrates Court of Queensland
M & L Zabala Investments [2021] Magistrates Court of Queensland

Facts

A 27-year-old international backpacker, Olivier Caramin died in 2017 in a Townsville hospital the day after he collapsed while working at a watermelon farm. Oliver Caramin was working outdoors on a day when the temperature topped 40 degrees. Bradford Clark Rosten, a sole trader and operator of a labour hire contract business which organised harvests for clients, had employed Oliver Caramin to work on the farm. The farm was leased by Zalaba Investments Pty Ltd.
Court's findings about systems of work
- Oliver Caramin was only on his second day of work and had not been inducted into Rosten’s work system properly.
- Minimal information was provided about requirements for hydration and nutrition to alleviate the effects of working in a hot environment.
- Shelter for workers, or how the work could be done outside the hottest time of day, was not considered or implemented by Zabala Investments.
- Oliver Caramin showed signs of heatstroke on the day.
Conviction

$65,000 fine imposed on Bradford Clark Rosten

$100,000 fine imposed on M & L Zabala Investments Pty Ltd (in subsequent and separate proceedings)

Linnane (Department of Planning and Environment) v Peak Gold Mines Pty Ltd [2021] NSWDC 565

Facts

The prosecution followed the death of a worker in an underground mine in regional New South Wales in April 2017, caused by heat-related stress and the underground working conditions in the mine on the day.
Court's finings about systems of work
- Maddocks acted for the Department of Planning and Environment.
- Peak Gold had a safety management system, ventilation systems, and “heat illness” and “working in heat” training packages.
- However, Peak Gold failed to properly implement heat safety protocols on a day where it was known that there would be unusually high temperatures and fumes with reduced ventilation. The Court found that:
  - the risk was high, obvious and known to Peak Gold;
  - simple steps could have been taken to avoid or minimise the risk – such as monitoring conditions, making adjustments to the ventilation system, or removing workers from the mine.
Conviction

$480,000 fine imposed on Peak Gold Mines

Other incidents and investigations

Queensland

In October 2023 WorkSafe Queensland announced its investigation into the death of a farm worker in northern Queensland in April 2023. The farm worker was found deceased at a rural property after conducting outdoor labouring work at the property on a hot day. The worker had been working outside and returned to a shed on the property to rest and hydrate before he collapsed and was later found deceased. Early investigations indicated the worker had complained of cramps.

WorkSafe Queensland has not announced any findings as yet. Any decisions about potential prosecutions for liability will be made once the investigation is finalised.

Nevertheless, WorkSafe Queensland has warned employers of the importance of undertaking comprehensive risk assessments regarding heat risks.

Northern Territory

In November 2023 NT WorkSafe issued a statement providing safety information to employers following the hospitalisation of two workers suffering from heat related-illnesses in October 2023.

Key takeaways

A number of unsafe working practices can be easily identified from recent prosecutions and incidents – whether it be inadequate induction, training, or systems, a failure to monitor or adapt to changing conditions, or even to identify and respond to symptoms of heat stroke.

They serve as an important reminder for PCBUs that often simple steps can significantly reduce heat-related health and safety risks.

SafeWork NSW and WorkSafe Victoria each provide helpful guidance for PCBUs on this issue: see NSW here and Victoria here.

Some of the questions you should be asking when preparing for hot conditions and managing heat risks in the workplace are:

Are there extreme heat hazards in the workplace?
- Are workers exposed to temperatures above 30 degrees, high humidity, limited air flow and/or poor ventilation?
- Are workers engaged in physical tasks (and if so, for long periods)?
How severe are the risks and can they be eliminated or minimised?
- What are the environmental factors (air temperature, humidity) affecting the risks?
- What are the personal factors (clothing worn, physical activity, fitness) affecting the risks?
- Arethere any other relevant factors to consider, such as remote or isolated work?
Have you consulted with workers?
How can you control the risks?
- Have you developed a comprehensive heat management plan?
- Do you have induction and training on following safe work procedures, reporting problems, and recognising the symptoms of heat-related stress or illness?
- What can be controlled in the physical environment - can workers access cool drinking water, is there shelter and/or regular breaks (in a cool area)?
- What is suitable PPE?
Is it time to review your systems, policies, procedures, and/or control measures?

If you have any questions about implementing appropriate heat-related safety provisions in your organisation, please contact our work health and safety team.

Employment & Workplace

^{[1] Regulations 40(e) and (f), Model WHS Regulations.}

By Bruce Heddle, and Christine Maibom