Mining employers have far reaching WHS responsibilities when it comes to contractors and employees. It is essential that employers consider all possible risks and build a strong management plan around them to avoid any liability.
This extends to managing the risk factors and causes of fatigue, which is a major contributing factor to incidents in the mining industry.
Fatigue is a state of exhaustion caused by physical or mental exertion. It has long been acknowledged that impaired sleep caused by shift work is associated with a diminished ability to complete simple daily tasks, poor concentration and a heightened tendency to behave recklessly.
More recently, fatigue has gained traction in high profile matters, government campaigns and has been the subject of significant research findings.
A study by the Australian National University has shown that employees who work more than 39 hours per week are at higher risk of injury or illness if appropriate control measures have not be established in the workplace. This threshold reduces for people who also carry out care and domestic duties.
The study found that working longer than 39 hours generally led to a decline in mental and physical health, and increased exposure to fatigue and its associated risks. However, as all people become fatigued at different rates, it is important for employers to introduce strong policies to ensure they comply with their WHS duties and, more importantly, protect their workers.
In the 2017 matter of Kerle v BM Alliance Coal Operations & Ors  QSC 304 the Supreme Court of Queensland found the employers’ negligence caused the serious injuries sustained by a labour-hire worker involved in a single motor vehicle accident while driving home from work. The employee had completed four consecutive 12-hour night shifts, and during his drive home collided with a bridge rail and hit a wall.
The employee commenced proceedings against three employing parties, claiming damages for negligence from the employer, Axial HR, the host employer HMP Constructions and the Operator of the mine, BM Alliance Coal Operations – arguing that the accident was caused by fatigue as a result of working the consecutive night shifts.
While the employers highlighted that the injury did not occur during the course of work, they were nonetheless each found liable. It was found that the employers caused the risk by requiring the employee to work four consecutive 12-hour shifts.
In addition, each employer had control over the abilities and understanding of the contractor employed, and breached their duty of care by: failing to educate their employees about fatigue risks; by not providing rest areas for workers to use after shifts; and by not restricting the period between rest times to a maximum of 15 hours. Had the mine operator engaged a contractor suited to meeting the risks it would have fulfilled its WHS duty.
This case sets a precedent that extends the common law duty of care to the operator of a mine in circumstances where the injured worker is employed by an independent contractor, and highlights the need for employers, contractors and mine operators to ensure they have effective policies in place to manage fatigue risks and educate their employees. This is a duty under WHS legislation and this case demonstrates it can be extended to common law duties.
Mining sector employers should initiate a review of their strategies to ensure they comply with the legislation and to protect their employees. To assist, the following are a few important points to consider:
- Eliminate exposure to fatigue risks through appropriate rostering, support staff and other reasonably practicable prevention. This is a requirement under both the Work Health and Safety Act 2011 and the Work Health and Safety (Mines and Petroleum Sites) Act 2013.
- Some control measures that will minimise the risks of fatigue include implementing breaks or job rotations, ensuring sufficient sleep is incorporated into work schedules and monitoring the signs of fatigue.
- Introduce an option for employees to take time off in lieu when they are feeling fatigued or have worked long hours over a number of days.
- Provide suitable and adequate information, training and instruction related to work hazards and control measures in relation to fatigue, and ensure all workers are competent in basic risk management. This is a requirement of clause 104 of the Work Health and Safety (Mines and Petroleum Sites) Regulation 2014.
- Penalties apply for mine operators (both as an individual or body corporate) who fail to fulfil their obligations under the Act and Regulation.
The authors: Sarah Jones (Partner) and Ramza Martin (Solicitor), Hicksons Lawyers
 Huong Dinh, Lyndall Strazdins and Jennifer Welsh, “Hour-glass ceilings: Work-hour thresholds, gendered health inequities” (2017) 176 Social Science & Medicine 42-51.