Workplace fatigue is an insidious threat, and the scope of an employer’s liability in related injuries is broad. But steps can be taken to mitigate risks.
There are options available to employers to manage the risks of fatigue in the workplace to satisfy their duty of care and, most importantly, keep people safe at work.
What is fatigue and why is it an issue in mining?
Simply put, fatigue is a state of cognitive and/or physical exhaustion that reduces a person’s ability to perform their work safely and effectively.
This can have serious consequences for employer and employee alike, particularly in cases where a worker is required to manage a high-risk situation.
Indeed, a 2007 study published by Caterpillar Global Mining showed that roughly 65 per cent of truck haulage accidents in mining operations are directly related to operator fatigue.
The national policy body Safe Work has identified shift workers and people who undertake fly-in, fly-out (FIFO) and drive-in, drive-out (DIDO) work – all of which is very common in mining – as among the most at risk of workplace fatigue.
Some common contributing factors to fatigue include poor quantity or quality of sleep, shift work, long working hours, extended exposure to hazards (such as noise, vibrations, contaminants and loud noises), physically or mentally demanding work tasks, and lack of proper fatigue-management training.
Beyond the mental and physical toll fatigue can take on an employee, the consequences can also have tangible effects on an employer.
This was exactly what happened in a 2016 case against BM Alliance Coal Operations. The Supreme Court of Queensland ruled that the employer, host employer, and mine operator were jointly liable for $1.2 million after a worker was seriously injured in an incident brought on by fatigue.
As it happens, the accident did not occur at the work site but rather on the employee’s drive home after completing the last of four consecutive night shifts, each for 12 hours.
The decision to award damages to the plaintiff was made despite the fact there was no contractual provision connecting the plaintiff’s employment with travel to and from work.
The court nevertheless maintained that the employer’s duty of care extended to the accident on several grounds, most notably that the employers created the risk by requiring the employee to work consecutive 12-hour night shifts, causing inevitable fatigue.
More recently, a 2022 NSW case against Coalroc similarly dealt with a DIDO mining employee who was injured in a car crash on his commute from work. The plaintiff had just completed the last of three 12-hour shifts.
Like the previous case, the court found that the “work-induced fatigue occasioned by the nature and conditions of the plaintiff’s employment with the company” significantly contributed to his accident. The employer was ordered to pay over $1.1 million in damages.
There are two notable takeaways from these cases.
Firstly, in the Coalroc case the employer had a fatigue-management procedure in place, which the court noted was a “crucial document” as it demonstrated recognition of the risk of severe fatigue-related injury. Critically, it was the company’s failure to ensure employee compliance with this procedure that contributed to it being found liable.
To be specific, the court found that although the employee failed to submit a personal travel-management plan – as required by the company’s fatigue-management procedure – it was ultimately the employer’s failure to enforce the completion of the document that partly led to it being found liable. Had the travel-management plan been submitted, the risk of fatigue should have been identified and the accident avoided, according to the court.
Secondly, in both cases an employer’s duty of care was determined to extend beyond the time and place of the work site.
This means the scope of liability in relation to fatigue is considerably broad, calling for a significantly thorough fatigue-management plan.
What can an employer do about fatigue?
Safe Work suggests that the process begins with education and awareness.
It is important for managers, supervisors and employees to know the signs and symptoms of fatigue which, according to Safe Work, includes excessive yawning, short-term memory problems, inability to concentrate, impaired decision-making, reduced hand–eye coordination, and increased rates of unplanned absences.
Safe Work and the Commission for Occupation Safety and Health provide checklists for fatigue risk assessment.
Safe Work recommends that mining employers should initiate a review of their fatigue-management strategies to ensure they comply with relevant legislation as well as developments to common law.
An effective management policy may implement measures such as consulting with workers, examining work practices (ie employees having choice over hours, discouraging a culture of extended hours), examining sign-out sheets to identify excessive hours, consulting with experts, and reviewing incident data.
An effective policy may cover the roles and responsibilities of managers, supervisors, and employees in regard to identifying and managing fatigue, maximum shift-length – including consideration of a healthy sleep schedule – work-related travel, control measures for high-risk tasks, self-assessment checklists for employees, and procedures for reporting fatigue, as well as practices in place for managing employees too fatigued to continue working safely.
As far as the courts are concerned regarding discharging the duty of care of an employer, measures should be taken to adequately educate workers of the risks and injuries associated with their work, as well as those faced by long-distance commuters.
In the 2016 BM Alliance case, the court further suggested providing rest areas as well as transport facilities to and from the site, an implementation that it ultimately ruled would not have been unreasonable for the employer to have introduced.
Examples of effective fatigue-management strategies already in place within the mining industry, such as BHP’s fatigue management tip sheet, can be found throughout the sector.
The BHP policy suggests a review of any workplace practices that may increase the risk of fatigue, the review of roster design and operational requirements, the review and minimisation of practices that lead to extended hours or encroach upon sleep time, and even the implementation of biomathematical modelling of fatigue likelihood.
Looking somewhat more left of field, but still relevant to the greater goal of eliminating workplace incidents brought on by fatigue, Rio Tinto uses robots and automation to shoulder some of the most high-risk work.
The scope of liability for an employer’s duty of care regarding fatigue-related incidents is relatively broad. Precedent shows that the existence of a fatigue-management policy alone is not sufficient to discharge liability.
But digging through the rubble of past mistakes, there is a way forward.
Recommendations handed down by Safe Work, as well as the rulings of the courts, highlight three main aspects of a holistic fatigue-management strategy:
- A comprehensive policy for fatigue-related risk-assessment and management, such as those proposed by Safe Work and the courts
- Such a policy must be properly explained to employees through adequate training, with appropriate channels available for reporting potential risks before they occur
- It is up to the employer to ensure an employee complies with the policy by following up on essential documentation such as travel-management plans.
With a certain level of foresight and effort, the mining industry can continue to evolve the way it deals with workplace fatigue to help ensure everyone can get home happy and healthy.
Online risk assessments
There are several organisations throughout Australia that provide information on fatigue risk assessment and management:
- SafeWork SA (under ‘health and wellbeing’)
- National Heavy Vehicle Regulator (under ‘safety, accreditation and compliance’
- Safe Work Australia (under ‘hazards’)
- Government of WA Department of Mines, Industry Regulation and Safety (under ‘health and safety topics’)
- Better Health Channel Victoria (under ‘sleep’).