Australia’s ‘Black Summer’ – Government Inquiries into Bushfire Crisis

In the wake of New South Wales’ “worst bushfire season on record” and months of raging fires and smoke haze across Australia, multiple inquiries into the bushfire crisis have been announced. These include a formal NSW Government Inquiry, NSW Upper House Inquiry, Commonwealth House of Representatives Inquiry and a Commonwealth Royal Commission.

The 3rd of March 2020 marked the first time in over 240 days that NSW did not have an active bushfire. However, leading agencies and scientists warn we are already facing another “significant” fire season within the next 6 months.

The unprecedented magnitude of the bushfires presented multiple new issues affecting businesses and workers alike. One particularly relevant issue was air pollution from smoke haze and its effect on work health & safety. A bushfire smoke management plan has not been developed to deal with such extreme conditions.

The Worst Air Quality in the World

Australia’s air quality was amongst the worst in the world at times during the bushfire crisis. Sydney itself suffered through more days of poor air quality in 2019 than in the previous 10 years combined. Over a period of 81 days, the air quality across Sydney was measured as:

  • At least 28 days classified as hazardous – the worst-possible level;
  • 21 days as very poor; and
  • 32 days as poor.

Air quality is described as hazardous when the concentration of very fine particulate matter (known as PM2.5) is at or above 200. At its worst point, Sydney’s air quality index reached 790 on November 19, nearly four times the threshold for hazardous conditions.

Air quality was just as bad, or even worse, in other locations throughout NSW, the ACT and Victoria. On New Year’s Day 2020, Canberra had a PM2.5 concentration of 855.6, which was the most polluted air in the world on that day.

Do We Need a Bushfire Smoke Management Plan?

Sotiris Vardoulakis, Professor of global environmental health at the Australian National University, has called for an appropriate bushfire smoke management plan to be developed and implemented in the same way we have fire management plans. The plan would include an agreed upon level of PM2.5 at which workers can stop work due to the risks posed by poor air quality:

“This is a new situation and people need to know what to do when there is a risk of exposure at this very high level.”

Under current WHS regulations, while workers have a right to refuse to undertake dangerous work, many still continue to work in unhealthy conditions. For many, there is the concern of being stood down without pay and not receiving an income, or potentially facing opposition or reprisal from their employer if they refuse to work.

Workers Stripped of Bonuses and Denied Backpay 

In December 2019, Australia’s biggest port operator DP World stripped $120,000 worth of bonuses from Wharfies who stopped work at Sydney’s Port Botany due to poor air quality caused by the bushfires. DP World has since confirmed its refusal to backpay workers who would not work during the bushfire smoke haze.

While this particular example is complicated by a long-running enterprise bargaining dispute and industrial action, it is indicative of the uncertainty and disagreement surrounding the WHS obligations of employers and rights of employees in situations of dangerous air quality and other WHS issues caused by extreme weather events.

Future Scope for WHS Changes?

Will the various State and Commonwealth inquiries be able to reach a common conclusion and implement effective WHS measures for addressing periods of hazardous air quality in the future?

The draft terms of the Royal Commission raise concerns that there is not a uniformed approach to emergency arrangements across Australia, describing them as inconsistent between the states and territories. The implementation of a harmonised approach across Australia and the recognition of the threat of climate change are key issues that are set to be examined in this national inquiry.

Climate Change Impact on WHS

Even without a bushfire smoke management plan, employers should brace themselves for the impact of climate change on work health & safety. Employers need to carefully identify whether and when any smoke or heat (or by product of the same, such as asbestos hazards) might pose a risk to their workforce and the reasonably practicable steps to mitigate those risks.

If you have any questions relating to any WHS issues that may have arisen for you as a result of the bushfire crisis or other extreme or unusual event, please do not hesitate to contact Nick Stevens or Jane Murray.

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