Q: We are a cable-laying company based out of Sydney but have worksites across Australia that are quite remote. Currently, we work an 11/3 roster, which works fine for local labour but is impractical for employees who live in a different State to the worksite. We are looking to alter this roster to a 21/7 after consultation with the employees concerned.

Is working that many days in a row in contravention of any Commonwealth or State legislation? Is having an effective fatigue management plan in place enough to meet our health and safety obligations?

A: You should consider whether any of your employees are covered by a modern award, enterprise agreement or other registered agreement, in particular, the Building and Construction Award or Electrical Award. Such agreements will likely provide details around the permissible number of consecutive days worked and days off.

For non-award or non-enterprise agreement employees, employment contracts and the National Employment Standards (NES) will govern the employment. The NES provide that an employee cannot be made to work more than 38 hours in a week, unless an employer asks them and they agree to work reasonable extra hours. If no other
employment agreement applies, you should ensure you comply with the NES.

You should also consider your obligation to consult with employees about changes to their regular roster or ordinary hours of work.. This means, before making a final decision to implement the change, you must:

• provide information about the change, e.g. what the change will be and when;
• invite employees to give their views about the impact of the change; and
• consider these views about the impact of the change.

Awards, enterprise agreements and other registered agreements can set out extra rules about changing rosters, and how and when employees are given rosters.

As you have identified, worker fatigue is a risk to the health and safety of your workers, both to the fatigued worker and other persons in your workplace. Ensuring that you have an effective fatigue management plan in place is important.

There are several overlapping duties. A PCBU has a general duty to eliminate or minimise risks to the health and safety of your workers and other persons in the workplaces (s 19 of the Work Health and Safety Act (WHS Act)). A worker, while at work, must also:

• take reasonable care for their own health and safety; and
• take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons; and
• comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the PCBU to allow the person to comply with this Act; and
• cooperate with any reasonable policy or procedure of the PCBU relating to health or safety at the workplace that has been notified to workers (s 28 of the WHS Act).

There is an obvious risk that a PCBU and a worker will be in breach of their health and safety duties if the worker performs work when they are not fit to do so.

Please note: The answer is correct at the time of publishing. Be aware that laws may change over time. Refer to Fatigue for current advice.