Today’s correspondent tells me that:

The NSW SES has announced that from January 2024 all new volunteer members will be required to undertake a hearing assessment within three months of starting with the agency.

This is due to new legislation which has recently come into effect – WHS Regulation 2017 Part 4.1 Noise Clause 58 – Audiometric Testing which states:

This clause applies in relation to a worker who is frequently required by the person conducting the business or undertaking to use personal protective equipment to protect the worker from the risk of hearing loss associated with noise that exceeds the exposure standard for noise.

The Act doesn’t define “frequently”, but as an SES volunteer myself I don’t consider that I frequently use hearing protection – maybe once every couple of months when using a chainsaw or being under a Helicopter.

Is there a standard legal definition of “frequently”?

Regulation 58(1) has been quoted above. Regulation 58(2) says:

The person conducting the business or undertaking who provides the personal protective equipment as a control measure must provide audiometric testing for the worker–

(a) within 3 months of the worker commencing the work, and

(b) in any event, at least every 2 years.

The obligation to give audiometry testing to those frequently required to wear noise protection PPE does not mean that the PCBU cannot give, or require that testing for everyone.

Frequently

There is no standard legal definition of ‘frequently’ in any law dictionary I can access. A google search provides the following definition from Oxford Languages – ‘regularly or habitually; often’.  There are no cases interpreting the word ‘frequently’ as it is used in the WHS regulation.

The risk of hearing loss

The theory behind modern work health and safety legislation is that it is up to the person conducting the business or undertaking (the PCBU) in consultation with the workers to identify risk and to put in place measures to manage that risk. Every work place is different so it is left to each workplace to manage risk rather than set out prescribed rules that have to be complied with in every workplace, but which may be irrelevant to some. This leaves lots of room for discretion and for different judgements as to what is a reasonable response to risk. That is problematic for PCBUs that have attempted to manage risk but where a WorkSafe inspector thinks they have not done all that they reasonably could, or should have done. The only way to find out if a PCBU has met its obligations is to put the matter before a court but that is costly and ineffective and shutting the door after the proverbial horse has bolted.

To avoid that the Minister can publish relevant Codes of Practice (Work Health and Safety Act 2011 (NSW) s 274).  A Code of Practice is not binding but if a PCBU can show that it has followed the Code of Practice then that is evidence that it has met its obligations under the Act (s 275).  There is a Code of Practice for Managing noise and preventing hearing loss at work (December 2022). The Code does not define the term ‘frequently’.  The Code does talk about exposure to noise. There is a prescribed noise threshold of 85 decibels averaged over 8 hours or a peak noise of 140 decibels. The Code of Practice says:

Whether the exposure standard (85 dB(A) averaged over eight hours) is exceeded depends on the level of noise involved and how long workers are exposed to it.

Peak noise levels greater than 140 dB(C) usually occur with impact or explosive noise such as sledge-hammering or a gun shot. Any exposure above this peak can cause almost instant damage to hearing.

Decibels (dB) are not like normal numbers. They can’t be added or subtracted in the normal way. The decibel scale is logarithmic. On this scale, an increase of 3 dB represents a doubling of sound energy. This means that every 3 dB increase in noise level can cause the same damage in half the time. Table 1 provides examples of the length of time a person without hearing protection can be exposed before the standard (LAeq,8h = 85 dB(A)) is exceeded…

Davis, in ‘Noise and Vibration Hazards in Chainsaw Operations: A Review’ (1978) 41(3)  Australian Forestry 153-159, says:

The average noise level for many chainsaws is about 106 dB; this is medically unacceptable when exposure occurs over the average cycle times for stump operations. However, ear-muffs will reduce the perceived noise level to below 80 dB, thereby eliminating the dangers of deafness.

(see also WA Department of Energy, Mines, Industry Regulation and Safety, Noise Management: Chainsaws (May 16, 2014)).

Similar noise levels for rescuers outside of helicopters have been reported (Thomas Küpper, Paul Jansing, Volker Schöffl, Simone van Der Giet, ‘Does Modern Helicopter Construction Reduce Noise Exposure in Helicopter Rescue Operations?’ (2013) 57(1) The Annals of Occupational Hygiene 34–42, https://doi.org/10.1093/annhyg/mes048).

According to Table 1 of the NSW Code of Practice, a person can be exposed to 106 dB(A) for 3.8 minutes before they have been exposed to the prescribed noise threshold.  

Presumably someone who uses a chainsaw or is sometimes under a helicopter is exposed to that noise for more than 3.8 minutes on each occasion.  If they spend even an hour chopping up a fallen tree they are being exposed to noise and required to wear PPE ‘frequently’ even if they don’t do it again for 2 months.

Discussion

Risk assessment is about measuring the likelihood of an event against the undesired outcomes. No-one wants an SES volunteer to lose their hearing. If the SES decided that a person was not frequently required to wear PPE to protect them from noise, they may not require audiometry testing. What is the consequence? The member may suffer hearing loss that goes undiagnosed so ends up worse than it need be. Without a ‘base line’ they cannot show that if they have hearing loss it is attributable to your SES service.  The SES may be prosecuted if the SafeWork inspector does not agree with the assessment. The SES (and the member) can mitigate that risk by audiometric testing.

And think of it from the SES point of view.  If they are going to ask each individual member ‘do you think you are frequently required to use personal protective equipment to protect you from the risk of hearing loss associated with noise?’ they will get as many answers as people they ask.   And the frequency may change.  A person may think they are rarely exposed to noise for their town to be struck by a storm and they spend the next two weeks in a high tempo operational environment. It makes much more sense for an organisation like the SES to make the assessment based on role and training rather than each individual’s expectation.  To say, in effect:

You have completed the chain saw course and therefore we expect you to use a chainsaw. Every time you use a chainsaw you are required to using hearing protection PPE.  We don’t know how often you’ll be called upon to use a chainsaw but given it is now part of your role you will be ‘frequently’ – regularly or habitually – (and more frequently than someone who is not an SES chainsaw operator) to use noise protection PPE and therefore we are obliged to provide audiometry testing.

Chainsaw operators get frequently exposed to chainsaw noise; flood boat operators are frequently exposed to the noise of outboard motors; office administrators generally work in a quiet environment etc.

And beyond doubt the safest option for everyone is to test everyone.

Conclusion

I don’t know if my correspondent is being offered audio assessment and doesn’t want it; is not being offered it but they want it; or if they are indifferent and just want to know what the word ‘frequently’ means. The question I was asked was ‘Is there a standard legal definition of “frequently”?’ The answer to that question is ‘no’. 

I have gone beyond answering the question asked to say how I think a prudent SES would or should make the assessment of ‘frequently’ for the purposes of the Act. I have done that without reference to legal authority (ie case law) but from my reading of the Act and my understanding of the WHS legislation. It is however up to the SES, in consultation with workers (including volunteers) to decide how it will manage the risk.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.