• Tracy K
    2
    Hi,
    Does anyone have any advice around this? If an employee starts working a second full time job (night shift) before coming to their primary job, which is a physically demanding role. They also need to drive as part of their job and use power tools.
    It has prompted me to put together a fatigue policy, is there anything else that can be done other than talking to employee about risks and watching out for signs of fatigue etc.?
  • jason farrow
    12
    if your business is aware of it then conflict of work would mean going down an HR route.
    we had the same issue with temp workers working with an agency for Fonterra, Temp staff working shifts at one site and working the next shift after sleeping in the car park at another site.
    Fonterra full time staff have a stand down period of 10 hrs between shifts.
  • jason farrow
    12
    Employees who have two jobs need to make sure that the hours worked and the nature of the work does not make them so fatigued that they, or others, are at risk of harm on either job.
  • Andrew
    391
    Generally it will be a "no" to secondary employment. But as always its a case by case basis and so I dont have a policy.

    I was recently looking for a welder and had a call from a guy who was interested. He already had an 8 hour job and reckoned he would be fine in my 8 hour job as well. "You're dreaming mate" was my response.

    People who follow my posts know I detest policies. And I don't busy-body into peoples private lives out side our four walls.

    I view "fatigue" as just a simple subset under "impairment" and so we are always on the look out for signs of impairment. Doesn't matter where it comes from - we want people here fit, able and alert to do their jobs. If not we have a wee chat.
  • Tracy K
    2
    The trouble is there is no clause in contracts about second jobs, and it seems everyone has a 'side hustle' these days it has made we aware that we don't have any protocols around this.
    Working two full time jobs is unsustainable, so not sure how to manage it if the employee does not see it as an issue.
    Waiting for signs of impairment/fatigue does not seem responsive enough, can it become an immediate HR issue without signs of impairment / fatigue?
  • Peter Bateman
    270
    This story from a Coroner's report from March is worth reading on this topic.
  • Steve H
    308

    Primary hours of work, shifts per week? How many hours do you let/ask/make employees work? How do you manage fatigue with your sites?
  • Tracy K
    2
    Sorry, new to the site and pressed share by accident, thanks for the article really helpful
  • Andrew
    391
    @Tracy IRD is pretty good at identifying "secondary Employment" ask your payroll people what tax code the person is on. If it SEC then you know you arent the primary source of income
  • Wayne Nicholl
    11
    This is always a tough one. We are having some trouble getting people to distinguish between being tired and being fatigued. There is quite a difference and everyone has different tolerance levels - so that makes it hard to manage via a policy. Secondary employment is often signed off by the primary employer, so it is out in the open and good support can be given if required (and acceptable to both parties). I think there needs to be some flexibility in this space as the cost of living goes up and more people may need some secondary employment. When looking if fatigue was an issue for us - I realised that we had policies / procedures, but some people just needed the extra hours to be able to support their families and they coped well. But others can hardly stay awake doing normal hours. We manage it case by case
  • Darren Cottingham
    59
    If they are driving (and even though it's not heavy vehicles), you could follow the guidelines set out in the logbook and worktime rule:
    No more than 13 hours of work in 24 hours with at least a 10-hour break before the next work day. I.e.
    Max 5.5h work, min 0.5 break, max 5.5h work, min 0.5h break, max 2h work + min 10 hour break.
    No more than 70 hours of work in a cumulative work period before they have at least a 24-hour break.
    This is legislated for heavy vehicle drivers. Fatigue massively increases accident risk and decreases productivity. You won't be getting the best out of your worker as it's not sustainable to do 16-hour days + whatever commute they have.
    More info here https://www.drivingtests.co.nz/resources/heavy-vehicle-work-time-requirements-and-logbooks/
  • DAVID WILKINSON
    0
    Concur with above, most organizations have a conflict of interest Policy, and a second job would surely fit into this, and need careful consideration as to the effects on the main role around Health & Safety - fatigue, driving, hours etc.
  • Shannon
    2
    Review their pay rates - maybe your organisation is paying too low cf the market? Help the employee to understand what they need to do to get their pay rate up. I am helping someone with this atm - we are looking at what skills are required to enter a better payment bracket and will put together a plan to make this happen
  • Steve H
    308
    Good strategy Shannon, a win win.
  • Rowly Brown
    59
    An important and significant fact that most employers and managers, and certainly employees are unaware of, is the provisions the ACC Act has on secondary employment. If an employed person suffers a work-related injury ( including motor vehicle injuries in specified circumstances) the employer in whose employ the worker suffers the injury is liable for all of the lost earnings the employee loses from all of the jobs, primary, secondary, and any others. Typically the employer of the moment (Employer A) has to pay 80% of lost earnings for the first week. ACC pays 80% from week 2 until recovery. If the employee has a second job with Employer B, Employer A is liable to add 80% of the earnings from that employment as well. It could well be that Earnings from Employer B are greater than from Employer A. That means Employer A is liable for a greater amount than if there was only source of earnings. And ACC will aggregate the total compensation paid in respect of the injury covered when calculating additional Experience Rating liability of employers. Maybe some employers might want to consider a "policy" on secondary employment for their workers, particularly if their worker's other employment was higher paid.
    Check ACC Act 2001, S.98; & Schedule 1 cl.33(2).
  • MattD2
    338
    Maybe some employers might want to consider a "policy" on secondary employment for their workers, particularly if their worker's other employment was higher paid.
    Check ACC Act 2001, S.98; & Schedule 1 cl.33(2).
    Rowly Brown
    Just be careful as an employer can not prevent an employee from taking a second job unless it has genuine reasons. The increase risks identified in the OP's case would likely suffice but the restrictions can only be so far as necessary to manage the genuine reason(s).
    I would not expect the courts to consider "we don't want to pay our employee more money if we hurt that employee" as a genuine reason for preventing a worker from taking a second job.
    Emplyment Relations Act 2000 - S67H
  • Joe Boyle
    14
    for policies and advice on employment relations issues like this call EMA Adviceline. First and foremost it is an employment relations issue before it is a health and safety issue.
    0800 300 362
  • Andrew
    391
    A sufficient reason would be:
    On assessment of the activities carried out by the employee in their other job (or activity) there is a risk that the person would come to our work so impaired as to put the safety of themselves and others at risk.

    Because this isn't just about second jobs. Its about activities out side work (sports or gaming being examples) that causes the impairment.

    Of course you wouldn't just willy nilly go firing they person. You'd give them an opportunity to choose.
  • MattD2
    338
    yeah that is what I said - in the OP's case it would be pretty reasonably to restrict that kind of additional/secondary employment.

    What I was clarifying is you can't stop an employee from taking a second job just because you don't want to have to cover the wages of that other job for a week if you injure them (replying to Rowly's warning)
  • Andrew
    391
    I havent seen it tested - but you probably can.

    But you would need to put it in the employment agreement that any secondary employment needs to be approved and agreed by the employer prior to the employee taking up that second employment. Simplest that way.

    The alternative is to renegotiate the employment agreement at a later date and have the clause inserted by mutual agreement.

    Any secondary employment not approved could be ground for termination. I'd probably run with a breach of trust and confidence line. Though I'd give the employee an opportunity to remove themselves from that secondary employment first.

    And ACC, should push come to shove, is a valid reason that helps an employer coming to a justifiable position. An employer shoudlnt be exposed to unknown business risk they can't manage. Claim costs are one aspect that ACC looks at when assessing an employers experience rating. Along with claim numbers. So 1 impaired worker having an accident can impact an employers experience rating / discount/ penalty. Of course - your wouldn't run that as your sole line of argument.

    On a side note, any policies introduced without consolation and agreement with employees that impact on employment can leave an employer vulnerable if they choose to enforce those polices.
  • MattD2
    338
    all good points.
    But I would still argue that a concern about paying additional ACC cover for one week would not be a genuine reason. Even if the other employment was a $200k annual salary, you would knly be kn the hook for about $3000. And from what I understand from the ACC information the experience rating doesn't take into account the dollar value of compensation payments (only the cost of treatment (over $500) and days of compensation paid, and fatalities).
  • Andrew
    391
    Correct.
    But say you currently get a 10% discount. You want to be well within the threshold of those numbers so you don't get close to losing 10% (discount / penalty comes in 10% increments) value of your premium. And all it takes is one person (doesn't matter if it is the secondary work person or not) to have excess days off or excess treatment costs (hopefully not a fatality!) to tip you over the edge.

    Say you have a $200,000 ACC premium. And say you have someone on $200k on the second job. But that person has a bad accident requiring X days off that tip you over the edge. You are now looking at a $20,000 additional ACC cost. That isn't insignificant.

    ( I had one employee with several ACC claims -and hes tipped me over the edge. No longer works here. Fired!)
  • MattD2
    338
    How does the salary/wages of a second job factor into your ACC experience rating calculation? It doesn't.
    The only way it could factors in is if you claim that having a second job before the injury slows the recover of the injury that your company caused (i.e. increasing the number of compensation days). But that would be hard to prove. And even harder to justify as a genuine reason to restrict employees' rights as a blanket policy.
  • Andrew
    391

    Because if the fatigued worker comes to work and has an injury that is one more injury that goes into the pot used to calculate experience rating.

    As you pointed out - its not the wages of the second employment that impacts your experience rating - its the days off / costs that do.

    The wages impact is what you have to pay in total all up first week compo.
  • MattD2
    338
    I was originally responding to Rowly's post warning people that you are liable for covering 80% of all of the injured worker's income. My comment was to clarify that you cannot restrict your employees taking a second job for that reason alone, and you have to have a genuine reason for restricting secondary employment, and you cannot restrict secondary employment greater than necessary regarding that genuine reason.

    No one is arguing that you can't / shouldn't have a policy in place (and clauses in your employment contracts) to restrict workers from taking on additional employment. This is reasonable to manage the risks associated with workplace fatigue, especially regarding secondary employment.

    Rowly's post was not referring to the risk of losing any discounts to ACC levies if a worker is injured in your workplace due to being fatigues from another job. You are making good points - but effectively those points are regarding the business managing the risk of fatigue in their workplace and minimising the likelihood those risks cause a worker to be injured/killed. With the loss in ACC levy discount is just secondary to this, as those discounts were always an incentive for businesses to take active steps to manage risks.
  • MattD2
    338
    Sorry if the above ACC talk has taken this a bit off-topic.
    Regarding the employment contract - does it include any general clause regarding the employee's obligations under HSWA's duties of workers? e.g. that they take reasonable care for their own H&S at work and that no actions or inaction of theirs adversely affects the H&S of another person.
    From what you describe in the OP, it could be reasonable to conclude that this worker was putting their own or another persons safety at risk if they are working 80+ hours a week at two full time jobs, with physically demanding workloads. Even needing to take into account if they are driving to/from work - there was a case a few years back where a company was prosecuted for a fatal accident when a worker crashed a tractor he was driving home after a nearly 17 hour work day.
    First steps would need to be a discussion with this employee about their current role, and overall workload (from both/all jobs and other commitments). With talking through the risks they are putting themselves and others at, and why they have taken on the secondary employment, you can hopefully come to an agreement with the best way forward.
    Also the horse may have bolted on this one employment contract wise, but it is definitely something that your HR should be closing the gap on in future employment contracts.
  • Andrew
    391
    Again as a bit of an aside @MattD2 Employment Agreements are a bit of a simple or tricky issue, depending how you look at them.

    I don't have any broad "safety" clauses in mine.

    Firstly I come from a position that safety isn't negotiable. And an Employment Agreement is a negotiated document.

    Secondly you can't contract out of the law - so if there is already a legal requirement for an employee to do something , eg a workers duty under the HSWWA then there is no point putting it into the Employment Agreement.

    If you put stuff like that in there then you are creating potentially confusing two points of reference instead of one. You also have something else that is kept in writing - and that's always problematic.

    There is, broadly, nothing to stop an employer having a conversation with an employee about potential breaches of the HSWA due to fatigue / secondary employment, without the need to reference the employment agreement.
  • Matt Sadgrove
    26
    Fatigue is a complex phenomenon. Dealing with it in this instance is possibly an opportunity to map out (maybe in a bow tie) what defenses you have in place that remove the opportunity of fatigue inside the workspace while acknowledging there are factors outside of work which contribute to fatigue. You need to think about where you actually have control and then introduce monitoring (in cab eye movement and others) around the fringe. While the law is the law creating an environment of honesty and openness might help you find second jobs in the current financial environment is larger than just the one individual. For us secondary employment is part of our negotiated employment agreement however the onus to report to work in a fit state is an employee duty.
  • Rowly Brown
    59
    It's unfortunate that I've been away from the forum since posting my original comments on this thread. Keeping comments too brief can lead to misinterpretations and misunderstandings. Sometimes I break my own rule to "never assume".

    I was somewhat dismayed at MattD2's narrow analysis of the implications my comments alluded to, but conversely encouraged by the insight and understanding evinced by Andrew's responses. He displayed an excellent grasp of the subject matter. Experience certainly aids our understanding.

    The provisions of the ACC legislation in regard to entitlements provides a legal justification for establishing policies around secondary employment rights. There is, of course, a provision in the HSAW Act (as in its predecessor) obliging employees not to do anything, or omit to do anything, that might consequently endanger themselves or any other person. That could include arriving "fit" for work.

    Health conditions, medication dependency, etc etc, are legitimate matters for required disclosure to would-be employers. These are factors employers can (should) take into account in deciding whether to employ (or terminate) persons whose well-being may be impaired in the employment by the existence of those factors, including fatigue / health effects from other employment. Of course, reasonableness and likelihood of impairment (risk) are considerations.

    It was perhaps unclear wording on my part to allow an inference that paying the first weeks lost earnings from both Business A and Business B in the event of an LTI in Business A would be grounds for prohibiting employment in Business B. That basis alone, as Matt inferred,would be unsustainable grounds.
    However the thread introduced by Tracy was about fatigue and secondary employment. Employers and employees both have a duty to ensure the employee is "fit" for work, i.e. unimpaired, to the extent that that is possible to determine. Pre-employment health checking and declarations, drug detection and management policies, declarations about other employment or activities are legitimate measures to identify potentially at risk workers. Truck drivers and airline pilots are patently obvious examples where fatigue risk management measures could include prohibitions on secondary employment.

    The topic has actually been well covered in the ongoing thread by others, including the implications for Experience Rating by ACC. RTW to Business A may not apply to RTW to Business B, and so continue to impact ER for Business A i.e. total compensation days paid. It is the costs to ACC in relation to the accident claim that are used to calculate Experience Rating. Clarification achieved?
  • MattD2
    338
    I was somewhat dismayed at MattD2's narrow analysis of the implications my comments alluded to, but conversely encouraged by the insight and understanding evinced by Andrew's responses. He displayed an excellent grasp of the subject matter. Experience certainly aids our understanding.Rowly Brown
    to be fair your original reply on face value was only related to the ACC implications for employers, and did not refer to any other post or detail in this thread, or to it being a secondary consideration to be aware of. In fact the post starts with a statement that the ACC cost implications are an important and significant fact.
    I agree that misunderstandings/misinterpretations are easy to occur when context is missing.

    The intent of my original reply was just to widen the scope of your comment - and to put it into context that while it is reasonable to have policies in place to limit secondary employment to manage the H&S risks that secondary employment may create for an organisation, that to be cautious if you are only considering the cost implications from ACC when determining if secondary employment should be limited.

    After all, the ACC cost implications of workplace accidents are a carrot (or stick) to encourage organisations to manage H&S risks in their workplaces - and therefore the focus should be on managing the H&S risks (i.e. manage the fatigue risks), rather than a direct focus on managing the ACC cost risk (i.e. blanket policies limiting secondary employment without individual consideration).

    I know that for some owners / boards / executives seeing the (potential) financial shock of what a workplace injury could mean for their ACC liability can be a driving force for change/improvement - you just have got to be cautious that those changes/improvements are focused in the appropriate direction and not towards unintended consequences.
  • Don Ramsay
    147
    This post is taking on a life of its own, everything from legislation to driving hours. Maybe the simple solutions are that we ensure that the wages and hours are enough that a person does not need to take on a second job to make ends meet. That would reduce the risk overnight....
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