The “Trolley Dilemma” is a thought experiment developed by philosopher Philippa Foot in 1967 and adapted by Judith Thompson in 1985. In simplistic terms, it requires consideration of whether you would pull a lever to divert an out-of-control trolley that is about to hit five unsuspecting people, knowing that if you do, the trolley will hit one unsuspecting person.
Announced in the Advertiser[1] on Thursday, 13 January 2022, the South Australian Government has created a category of workers deemed “close contact critical workers” in the following industries:
- Defence
- Energy
- Water Infrastructure
- Waste management
- Food manufacture and distribution (including retail and hospitality)
- Emergency Services
- Veterinary services and animal welfare
- Agriculture
- Airports
- Funerals/crematoria
- Freight/logistics
- SA courts and tribunals
- Civil construction
- Critical maintenance on essential government infrastructure
Similar decisions have already been made in other industries (such as health and disability support) and jurisdictions where the spread of the SARS-CoV-2 virus (particularly the Omicron variant) has caused widespread labour shortages.
Implicit in these decisions is that there has been an assessment that the risk of not being able to provide goods and services to the Australian community is sufficiently high that control measures previously used to control the spread of SARS-CoV-2 (such as quarantining close contacts of known cases of COVID-19) are no longer reasonably practicable. It would seem Governments across Australia have decided the risk to society if these industries fail is now more significant than the risk of these critical workers catching COVID-19 and spreading it to others - thus, pulling the lever. But, where does this leave businesses that will now have to plan for the increased risk of exposing their workforce to COVID-19?
The decision as to whether to suspend or cease the provision of goods or services (knowing the damage this would cause) or to continue operating knowing that doing so will place your workers at greater risk of contracting the virus and developing COVID-19 is in all respects invidious. It places the decision-maker right in the crosshairs of sections 19 and section 27 of the Work Health and Safety Act 2012 (SA) (‘the WHS Act’).
I have anecdotal feedback that SafeWork SA and SA Health have been excellent sources of assistance for businesses in critical industries who are having to make these tough decisions.
For those organisations that find themselves in the position of having to consider using workers who are close contacts of known cases or returned positive tests but are otherwise sufficiently fit and healthy to continue working, some critical matters need to be considered:
- Refresh your memory of sections 17 and 18 of the WHS Act, which set out the extent to which you are required to manage risks and what is considered “reasonably practicable”. Importantly, you need to be able to show that you have considered not just the available methods to eliminate or minimise the risk, but also the cost of those measures. This is not just the financial cost, but also includes the cost to those who might depend on your services (such as aged care residents, patients, and customers in regional areas who cannot source the relevant goods or services elsewhere).
- Ensure that your risk assessment(s) and control measures are reviewed frequently. The circumstances of this pandemic change rapidly, so you need to have the ability to do so as well! A control measure that would seem to be a ‘must have’ in these situations is requiring your onsite workforce to be fully vaccinated against COVID-19. Although not as effective at controlling the spread of the virus as perhaps we had hoped, it still reduces that risk and (most importantly) it significantly reduces the risk of severe disease.
- Where appropriate engage with, and seek the support of, the relevant regulatory services. Not only will this assist you in managing your response, it will also mitigate your legal risk of prosecution.
- Consultation with staff is critical! This was made clear by the recent decision by the Full Bench of the Fair Work Commission in CFMMEU & Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059, where BHP’s mandate that all employees at the Mt Arthur mine were to be fully vaccinated against COVID-19 was overturned on the basis that BHP did not consult with their employees to the extent required under the WHS Act.
- Demonstrate not just leadership but also empathy for your workers. As a leader in your organisation, you may have dispassionately analysed the risk to your workers and be satisfied with the control measures you have in place, but it is important to recognise that many of your workers are responding to the current situation with raw emotion. Leaders need to be prepared to engage with this because otherwise, workers will vote with their feet.
If you are concerned about the legal implications of the difficult decisions you have to make, engage with your legal teams early to ensure a proper risk framework is put in place so safety measures are adequately considered and communicated by the right people in the right timeframe as these decisions are made.
