By Michael Selinger

Is the personal protective equipment (PPE) you supply your workers safe and fit for purpose? And how can you ensure your workers wear it?

These are two key issues that impact on employers.

Safe for use

Over the years, a number of safety products have been recalled by the ACCC, including self-retracting lanyards, fire extinguishers, eye masks and even Emergency Position Indicating Radio Beacons. So what does this mean for you and how you supply gear to your workers.

The first point to remember is that an employer has a general obligation to ensure the safety of workers and this extends to providing effective PPE.

To secure PPE that will do the job, you have to source equipment from a reputable supplier and also consider closely whether the product states that it complies with Australian Standards. It is also worth checking whether the product has been recalled and check industry feedback or comment on the product. This last step often provides some very practical insight into whether the product is any good or not.

And what if your worker wants to supply their own PPE – how far does your obligation extend in terms of actually checking that the equipment is safe for use?

And will you be responsible for any injury if it turns out that it was not safe?

The short answer is that you will be responsible. Certainly any worker’s compensation claim will fall under your business’ insurance policy. And when the safety regulator has a closer look to see what PPE was being used, you may well get asked the question as to whether it would have been reasonably practicable for your business to supply safe PPE to all its workers.

It’s difficult to see how that wouldn’t be the case, so it means that where you have the option of supplying the PPE yourself, and satisfying yourself that it is safe for use, then that will invariably be the better option.

And finally there is the question of cost. In some cases, and subject to any industrial agreement or contract of employment, the organisation usually has to pay for the PPE. Having said that, the fact that the organisation has to pay for the equipment does not mean the cheapest (or most expensive) option is the right one.

The real test is whether the equipment is going to provide adequate protection.
Cost will only be relevant if it is grossly disproportionate to the risk of injury. In the case of eye protection, for example, it is difficult to see how any organisation could ever justify not supplying proper eye protection if the risk of injury could result in blindness.

Wearing PPE

Of course, getting your workers to wear PPE all the time that it is needed is another issue. Supervision is the critical step needed here – with disciplinary consequences if there is a failure to wear the PPE.

But what if you do not think PPE will make any difference or poses a risk in itself?

The recent case in NSW of SafeWork NSW v KD & JT Westbrook Pty Ltd (2018) NSWDC 255 examined these issues.

In this case a young worker, Mr Staker, died after he apparently fell from his motorbike while mustering sheep in a remote property. The employer was charged regarding the death, including a failure to ensure Mr Staker wore a helmet.

The employer unsuccessfully defended the charges and argued that wearing a helmet while mustering was not reasonably practicable as it caused fatigue and heat, was uncomfortable and required repeated stops.

They further argued that there was no risk of death or serious injury when riding at the low speeds required of mustering work and that, on this particular occasion, Mr Staker had been riding dangerously for his own enjoyment in chasing down a dingo.

The court rejected the argument that the diversion to chase dingos was not part of mustering work and further found that the employer had failed to require Mr Staker to wear a helmet or give him sufficient information to make an informed choice to wear a helmet.

In the court’s view, there was ample evidence available to the employer that there were appropriate helmets that could have been supplied to its workers and that these were necessary to ensure safety.

The matter has now been listed for sentencing.