Fatigue and long hours at work: an NZ employer's duty, and the hours records that show it

Fatigue is a risk you have to manage

Section 36 of the Health and Safety at Work Act 2015 gives every business, or PCBU, a primary duty of care: ensure, so far as is reasonably practicable, the health and safety of its workers while they work. That includes safe systems of work and the information, training and supervision people need. Section 30 says how: eliminate risks where reasonably practicable, and where that is not possible, minimise them, to the extent you can influence and control the matter.

WorkSafe treats fatigue as one of those risks. Its fatigue quick guide defines fatigue as a state of physical or mental exhaustion that reduces a person's ability to work safely, and names the causes: long and irregular hours, night and shift work, sleep disruption, hard physical or mental work, the work environment and emotional strain, at work and outside it.

The 40-hour rule does not solve this. Section 11B of the Minimum Wage Act 1983 says an agreement must fix ordinary hours at no more than 40 a week unless both sides agree a higher number, but it excludes overtime, so it does not cap the hours someone actually works. Our article on overtime and the law covers when extra hours can be asked for. Whether a pattern of hours is safe is a health and safety question, and "reasonably practicable" under section 22 weighs how likely harm is, how bad it could be, what you know or ought to know, and what it would cost to prevent.

The duty runs both ways. Under section 45, workers must take reasonable care for their own safety and others', follow reasonable instructions, and co-operate with a health and safety policy you have told them about. Section 58 requires you to engage with the workers affected: share information, let them have their say, take their views into account and tell them the outcome. People who work the shifts usually know best where the risks are.

Warning signs in your hours data

WorkSafe's guidance on managing the risks of shift work suggests using data you already hold: work patterns, including where actual hours differ from rostered ones, overtime records, reports of fatigue and near misses, and sick leave. It notes that consistently working more than 40 hours a week, regularly having short recovery periods between shifts, or regularly working more than two night shifts in a row can lead to more sick leave. Hours records turn those into things you can check each week:

• Weekly totals. Who has worked well over their agreed hours, and for how many weeks running? A single long week is normal in a busy period; six in a row is a pattern to act on.
• Long shifts. WorkSafe suggests shifts of no more than 8 hours where the work is monotonous, mentally or physically demanding or done alone, and avoiding shifts over 12 hours.
• Runs of consecutive days. Its general guide is a limit of five to seven working days in a row for standard shifts, and two to three in a row for 12-hour night shifts.
• Short gaps between shifts. WorkSafe sets no single number; it asks for enough time between shifts to sleep, travel and eat, and notes that most people need 7.5 to 9 hours of sleep. Choose a minimum for your business, for example 10 hours from finish to next start, and look for gaps below it.
• Night work and early starts. Alertness is lowest for most people between 3.00 am and 5.00 am and between 3.00 pm and 5.00 pm, and WorkSafe suggests avoiding starts before 6.00 am where possible. When switching someone between day and night shifts, it advises at least two nights of unrestricted sleep.
• Missed breaks. Entries with no break across a long shift; our article on rest and meal breaks sets out the legal minimums.

None of these is a legal limit. They are signals worth a conversation, and that conversation, written down, is part of showing you managed the risk.

What a fatigue policy covers

WorkSafe says a fatigue policy should cover maximum shift length and average weekly hours, work-related travel, how to report fatigue risks, and how fatigued workers are managed. Its shift work guidance adds overtime and call-backs, roles and responsibilities, and a date to review the policy. Business.govt.nz, with Employment New Zealand, has a policy builder to start from. Example wording, to adapt with your staff rather than adopt as written:

• Shift length. "Shifts, including overtime, are no longer than 12 hours. Work that is monotonous, physically demanding or done alone is planned in shifts of 8 hours or less."
• Rest between shifts. "There are at least 10 hours between the end of one shift and the start of the next, including after call-outs."
• Weekly hours. "Hours above [your figure] a week, or more than [your number] days in a row, are approved in advance by a manager, who checks the person's recent hours first."
• Overtime and swaps. "Overtime and shift swaps are agreed, not assumed, and are recorded with the hours worked."
• Travel. "Driving to and from remote jobs counts towards the working day when planning shifts."
• Reporting. "Anyone can report that they, or someone else, may be too tired to work safely, to a supervisor or manager, without being penalised. A tired worker is moved to lower-risk work or sent home on pay, and does not drive if unfit to."
• Other work. "Staff tell us about regular work elsewhere, so we can plan rest; we do not ask who it is for or what it pays."
• Incidents. "Every incident and near miss includes a look at the hours worked in the days before."

Train new staff on it, review it each year, and check incident reports against the hours. If fatigue keeps coming up, our article on burnout at work covers the longer-term side.

Staff with second jobs

WorkSafe notes that fatigue becomes more likely when people take on second jobs or overtime on their days off. But your duty reaches only as far as you can influence and control the matter, and you cannot control hours worked for someone else. What you control is your own roster, and what you can reasonably ask.

Asking people to tell you about regular work elsewhere, so you can leave enough rest around it, is a reasonable step, and section 45 asks workers to co-operate with a reasonable, notified policy. Restricting other work is different. Under section 67H of the Employment Relations Act 2000, a clause that bans or limits work for someone else is allowed only for genuine reasons based on reasonable grounds, stated in the agreement, and no wider than those reasons need. The Act's examples are commercial information, intellectual property, reputation and real conflicts of interest. If a second job makes a particular shift unsafe, talk about the shift rather than the job.

Our article on working a second job shows the same questions from the employee's side.

Drivers and safety-sensitive roles

Some jobs carry their own rules. Commercial drivers are covered by the Land Transport Rule: Work Time and Logbooks 2007, which sets limits on driving and work time and requires many drivers to keep a logbook; the NZ Transport Agency explains who it applies to. Those rules sit beside your health and safety duty, and hours driven for you and hours worked in the yard both count towards someone's tiredness.

For other safety-sensitive work, such as operating mobile plant, working at height or in confined spaces, WorkSafe advises planning critical tasks away from the low points of the day and taking a conservative approach when they cannot be avoided. These are the roles where the warning signs above deserve a weekly look, and where a written check of recent hours before overtime is approved is worth the minute it takes.

Team timesheets from jobtracker.co.nz shows the hours your people choose to share, with weekly totals by person and each day's start, finish and break, and a CSV for any period that you can sort for long weeks, long shifts and short gaps. It does not flag fatigue for you, and it shows only the hours logged for your business, so a second job never appears. It costs $6.99 a seat a month, GST included, for at least three seats.

Long weeks you can see coming