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What do you mean, 'Closing the Loopholes'?

Dear Comrade: Is It Safe Working Outdoors In The Summer Heat?

Help! My employer shut down their business quite suddenly - going into voluntary deregistration. They still owe me wages for the last few weeks, not to mention annual leave and long service leave. These employers have actually shut down and started up again in the past. I contacted ASIC, trying to find out how I could get my entitlements, but I haven’t heard anything back.

Dear comrade,

I’ve been thinking about summer a lot lately, and not just because it’s so cold at the moment!

Last summer, by the time it got hot enough that my co-workers and I started to think about our heat policy for working outdoors, it already felt like it was too late. We were outside all day, in the direct sun, often without any amenities other than what we could bring ourselves. 

I remember thinking at the time: we should sort this out in the dead of winter next time, and when I saw my foggy breath in the freezing air the other morning, I knew it was time.

So here’s my question: where should we start? What are the laws about maximum temperature? I heard work legally has to stop at 35 degrees - is that true? And what about UV exposure?


  • Scotty 2 Hotty

Dear Scotty,

You’re absolutely right! This is definitely the perfect time to be thinking about summer! (And not just because of the need to get your heat policy sorted. Brrrr.)

First up, there’s a popular misconception that there is a legally mandated maximum temperature at which work stops. It’s not true. 

The reason why the number 35 gets floated around so often is because that’s when construction work stops, but it isn’t the law which mandates that. It’s the CFMEU. The strength of their industrial power is such that they have secured clauses in their EBAs to say that outdoor work can't be performed when it gets past that 35 degree mark. These clauses became a focus of the CFMEU because they regularly experience first hand the very serious dangers of working in intense heat. It’s a testament to their organising that the conditions they have fought for and won are largely seen now as industry standards and, effectively, the law of the land - at least on unionised building sites!

Outside of construction, there are some places that have similar clauses. If this is something you and your workmates would benefit from, we suggest organising for it to be in your EBA.

Let’s assume, however, you don’t have EBA negotiations coming up any time soon but you want to have your ducks in a row before summer. From here, we look at what our old friend the Occupational Health and Safety Act says. 

The Act is built upon the idea that an “objective” approach is better than a “prescriptive” approach. That means that the law doesn’t lay out everything an employer needs to do (like, for example, stopping work at 35 degrees) but rather, it requires an employer to look at all possible risk factors and control them. In a lot of ways, it’s actually better than a hard rule that work stops at a certain temperature, because it takes into account that there are other factors besides temperature to consider when looking at a heat policy. 

Section 21 of the Act says: “An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.”

What this means is that your employer has to keep you safe, no matter the temperature. It could be 34.9 degrees, it could be -5. 

Think about those hot summer days: how did you feel? Like you needed more breaks due to physical exhaustion? Like you needed more water because of dehydration? Like you were getting sunburnt because of the UV and not really because of the heat? Like your eyes hurt because of reflective surfaces? It’s important to break down risk factors, not just lump it all under “It’s too hot.” Specificity is key in OHS.

We can also take a look at another stalwart friend, the Hierarchy of Controls:

The Hierarchy of Controls

The Hierarchy of Controls

The hazard is the heat and the sun, so what can we do about it, starting from the top? Can we eliminate the sun? Mr. Burns tried it and was not successful. But in a way, yes we can eliminate it. For instance, can the work you do reasonably be performed at cooler times of the day? 

Substitution doesn’t really apply, so let's move down to engineering controls. Can you be protected from the hazard? Absolutely! Think: shade cloths, cooling fans or even moving parts of the work indoors. Also, always remember, your boss has to provide access to cool drinking water. 

Administrative controls, likewise, are absolutely implementable. In hot temperatures, people need more breaks and more access to amenities like cool drinking water. Also think about where you do your work: surfaces cause just as much heat and UV exposure as the sun does. Try to move away from bright, white concrete slabs, or heat-absorbent bitumen. Grass is your friend in the summer. 

PPE is a tricky one. A lot of employers go straight here because it’s cheap, easy to implement and makes it look like they’re taking safety seriously. It is, however, the least effective form of hazard control. A broad-brimmed hat and sunscreen are great, and you should all absolutely have them, but they’re not going to eliminate all the hazards associated with working in the sun. Higher-order controls from further up the pyramid are essential.

So, with all that mind, how can you get your employer to implement some of those things? The first thing you’ll need is a Health and Safety Representative. If you’ve got one already, great! If not, you’ll need to elect one

Once you’ve done that, the HSR has an arsenal of power they can use in order to bring the employer to the table to work out things like your heat policy. They can demand consultation and seek resolution, they can seek assistance from the union, they can seek the establishment of a health and safety committee and they can issue Provisional Improvement Notices (PINs) if the employer won’t cooperate. The best thing about a PIN is that the HSR also gets to nominate what their preferred controls would be.

All of these things take time, so there’s no time like the present to get started. And with a good few months before the temperature really starts climbing, you should be able to get everything you need to ensure that you and your workmates stay cool, healthy and safe this summer. 


Renata Musolino

OHS Unit, Victorian Trades Hall Council    

P.S. Does it feel like the hot summers are getting hotter? More dangerous for working outdoors? The OHS ramifications of climate change aren’t going unnoticed - read more about why this nurse believes we must take action on climate change now, before it’s too late.