Q: Our workers are predominately casual labourers. What should we do if they are working on weekends (for example) for another company and turn up fatigued on Monday morning to work for us?

We know we cannot force them not to work when they want (or need) to; but how can we enforce our policies and procedures that attempt to provide a safe and healthy work environment when the worker could potentially be not ‘fit for work’ at the start of a shift?

A: 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.

There are several overlapping duties. You have a general duty to eliminate or minimise risks to the health and safety of your workers and other persons in the workplace. In addition, workers have duties to:

• take reasonable care for their own health and safety take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons;
• comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting a business or undertaking (PCBU) to allow them to comply with health and safety legislation; 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.

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.

Some of the possible ways to manage worker fatigue would be to:

• discuss fatigue with the workers;
• ensure you have policies in place concerning worker fatigue and high-risk work;
• include a clause in your workers’ employment contracts that states that you reserve the right to send a worker home from work if you believe they are not fit to perform their duties;
• allocate the worker to non-high-risk work;
• send the worker home on paid leave (and ensure that there is a safe transport option);
• provide the worker with a formal warning and inform them that their employment is at risk of disciplinary action, including termination, if they continue to present at work while not fit to perform their duties; and
• direct the worker to attend a health assessment if the fatigue appears chronic.

These suggestions are general in nature and are not intended to be legal advice specific to a particular worker and their circumstances. We would recommend that if you intend to discipline a worker, you seek legal advice prior to taking any adverse action. There are some possible risks including a general protections claim or a discrimination claim, particularly if the employee claims that an action is taken on the basis of an illness or injury.

See chapter F3 Fatigue Management for further information on managing fatigue.

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.