A frustrated long-distance driver contacted us over concerns that he was being forced to wear a headband called the Life SmartCap as mandatory PPE during his shifts.
He claimed it was uncomfortable and didn’t do what his bosses said it was designed for – detect when he was tired and needed to take a break.
He was unable to find an amicable solution at his workplace, so we contacted Corrina Dowling, an employment law and workplace relations lawyer, at Barry.Nilsson. Lawyers in Melbourne, to find out where he stood.
Here’s what she had to say:
“An employer is entitled to issue a “lawful and reasonable” direction. Whether this particular direction is lawful and reasonable will depend on a number of factors. For example, what information is being collected (if any) and what will that information be used for; this may give rise to considerations under the Privacy Act 1988 (Cth). If the data derived from the equipment is viewed, stored or used by anyone other than the employee, there may be disclosure obligations on the employer.
If privacy considerations are not relevant, or complied with, the next issue is compliance with work health and safety legislation. Before selecting PPE, an employer should consult with their workers.
Assuming this technology is in fact “PPE”, (PPE is generally any anything used or worn to minimise risk to workers’ health and safety), it is important that it is a suitable size and fit for the individual required to use it, and that it is reasonably comfortable. The employer must ensure provide appropriate information, training and instruction in the proper use of the PPE.
Conceptually, it could be both lawful and reasonable for an employer to require its workers to use this technology. Importantly, failure to follow a lawful and reasonable instruction may result in disciplinary action up to and including dismissal. In addition, workers have obligations under the same work health and safety legislation to use or wear PPE.
If workers have concerns about the use, fit or other issues with the PPE, they should raise the matter with their employer.”
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