We operate a concrete block manufacturing factory with noise levels ranging from 93dB to 103dB. All workers wear hearing protection. Due to these high levels and 10 hours a day exposure, we want to enforce Class 5 ear muffs.
However, current earplug-wearers object, due to discomfort, and will not sign our new Hearing Protection Policy, strongly recommending earmuffs.
Can we enforce an ‘earmuffs-only policy’?
Part 4.1 of the Work Health and Safety Regulation 2011 (Regulation) relates to the risks to health and safety posed by noise. Relevantly, you are required to provide PPE to workers that is suitable to the nature of the work, suitable in size and fit and reasonably comfortable, and ensure that your workers use or wear the PPE.
In the process of introducing PPE, a PCBU must consult with workers (Work Health and Safety Act 2011 (WHS Act, section 49).
If the workers are represented by a health and safety representative, the consultation must involve that representative (WHS Act, section 48).
A breach of the duty to consult can result in penalties of up to $20,000 for an individual, or $100,000 for a business.
If the result of consultation indicates that a review of noise control measures is necessary, or if a health and safety representative requests a review, you must take the views of workers into account and advise the outcome of the consultation.
A worker, in turn, has a duty to comply, so far as reasonably able, with any instruction that is given by the PCBU to allow the PCBU to comply with the Act and co-operate with any reasonable policy or procedure of the PCBU relating to health or safety at the workplace that has been notified to workers (WHS Act, section 28). This obligation would extend to a direction to wear PPE and comply with a policy regarding PPE.
In respect of any disciplinary consequences for employees who fail to wear PPE, there should be in place a documented policy or procedure in the workplace which, broadly speaking, requires employees to wear PPE as directed. A contract of employment should require employees to comply with policies as a lawful and reasonable direction (although we caution against the policies forming part of the contract of employment).
Any policy or procedure and the contract of employment should specify that a failure to follow company policies and procedures or a lawful and reasonable direction may result in the employer taking disciplinary action.
However, it would be appropriate to seek legal advice before taking disciplinary action.