Genetic monitoring for workplace-induced conditions

32.54 Health surveillance involves the conduct of ongoing health assessments to identify whether an employee’s health is being affected by exposure to a hazardous substance in the workplace. Genetic monitoring—one form of health surveillance—involves the periodic testing of employees exposed to workplace hazards such as toxic chemicals or radiation to assess whether there has been any genetic modification as a result of workplace exposure.^[49] Genetic monitoring measures biomarkers of ‘biologically effective dose’ (for example, DNA adducts) and ‘early biological effects’ (for example, chromosomal changes) within an exposed person.^[50] The Inquiry understands that the technology associated with genetic monitoring is not currently sophisticated enough for precise and uniformly dependable test results.^[51]

32.55 Health surveillance in industries involving workplace exposure to hazardous substances is regulated under the framework of the National Hazardous Substances Regulatory Package, which consists of regulations, standards and codes of practice developed by NOHSC. The National Model Regulations for the Control of Workplace Hazardous Substances (the Model Regulations) apply to workplaces in which hazardous substances are used or produced, and to persons with potential exposure to hazardous substances in those workplaces.^[52] Each Australian jurisdiction has implemented the package (with some variations) in regulations under its occupational health and safety legislation.

32.56 The National Code of Practice for the Control of Workplace Hazardous Substances (the National Code), which forms part of the regulatory package, provides a hierarchy of control measures that can be used to eliminate or minimise exposure to hazardous substances. Consistently with occupational health and safety principles, the control measures emphasise elimination of the hazardous substance from the workplace as the top priority. Other control measures such as substitution, isolation, engineering controls, safe work practices and use of personal protective equipment may be considered only if elimination is not practicable.

32.57 The Regulatory Package provides for health surveillance of employees to identify changes in health status due to workplace exposure to hazardous substances. It establishes safeguards for the conduct of health surveillance, including the form of surveillance, the retention and confidentiality of surveillance records, and in some circumstances the appropriate remedial response to identified exposure.^[53] The National Code states that:

Health surveillance, which includes biological monitoring, can assist in minimising the risk to health from hazardous substances for which there are known and acceptable health surveillance procedures by:

(a) confirming that the absorbed dose is below the accepted level;

(b) indicating biological effects requiring cessation or reduction of exposure; or

(c) collecting data to evaluate the effects of exposure.^[54]

32.58 ‘Biological monitoring’ is one component of health surveillance. The Model Regulations define ‘biological monitoring’ as the measurement and evaluation of hazardous substances or their metabolites in the body tissues, fluids or exhaled air of an exposed person.^[55] It is unclear whether the term ‘biological monitoring’ as it is currently defined would include genetic monitoring.

Issues and problems

The employer’s duty of care

32.59 The employer’s duty to provide a safe workplace is of particular importance in industries involving workplace exposure to hazardous substances. Health surveillance programs have been developed for these industries as one means for an employer to comply with its statutory duty to safeguard employees’ health and safety; and to allow for early intervention to prevent onset of a disease in employees exposed to workplace hazards.

Mandatory or voluntary monitoring?

32.60 As with genetic susceptibility screening, it is necessary to consider whether employee participation in genetic monitoring programs should be mandatory or voluntary. As noted above, in some jurisdictions employees have a duty to co-operate with employers in the interests of workplace health and safety.^[56] This duty has been incorporated into the Model Regulations in the requirement that employees must comply, to the extent they are capable, with all activities carried out under those regulations.^[57] The National Code states that:

Employees should participate in the health surveillance program unless there is some compelling reason to the contrary, in which case the matter should be discussed with the registered medical practitioner responsible for the health surveillance program.^[58]

32.61 Monitoring under the Lead Standard, which forms part of the hazardous substances regulatory package, is conducted on a mandatory basis.

Submissions and consultations

32.62 In its submission to the Inquiry, the AMWU noted that:

In line with the overriding principles of … health and safety laws, health surveillance is prescribed for a small number of substances where there is a significant risk to health from exposure. NOHSC has also taken the step of prescribing the health surveillance tests required for these scheduled substances.^[59]

32.63 The ACTU was of the view that genetic monitoring should only be conducted within the existing Regulatory Package, adding that:

It must not be assumed that occupational health surveillance is totally benign. Health surveillance involves monitoring the adverse effects of hazardous agents and substances on the health of working people who are exposed to them. The union movement agrees that health surveillance is necessary in order to alert workers, employers and government agencies to potential adverse health outcomes from exposures. However, health surveillance must be conducted under strict provisions of confidentiality of personal health information and with associated obligations on the part of employers to control exposures where a risk is shown.^[60]

32.64 Margaret Otlowski has suggested that in appropriate circumstances genetic monitoring might be conducted on groups of workers rather than individually. The test results would be disclosed to the individual employees but the employers would receive only aggregate results. This would focus employer attention on improving workplace safety rather than identifying and eliminating ‘at-risk’ employees from the workplace.^[61]

Inquiry’s views

32.65 The Inquiry is of the view that, within the existing framework of the National Hazardous Substances Regulatory Package, genetic information may be useful in health surveillance programs for employees exposed to hazardous substances in the workplace. However, the Inquiry recommends that genetic monitoring of employees should be conducted only where there is strong evidence of a clear connection between the working environment and the development of the condition, the condition may seriously endanger the health or safety of the employee, and there is a scientifically reliable method of screening for the condition.

32.66 In order to ensure that genetic monitoring is conducted in accordance with this recommendation, the Inquiry recommends that NOHSC, in consultation with the HGCA and other stakeholders, develop a national code of practice for the conduct of genetic monitoring of employees exposed to hazardous substances in the workplace. The Inquiry notes that mandatory testing may be appropriate where there is a significant risk to health from exposure. However, this will be the exception rather than the rule and the code of practice should provide for voluntary or group monitoring to protect employee privacy and autonomy to the maximum extent possible.

32.67 In the course of developing this code, NOHSC should consider whether the definition of ‘biological monitoring’ in the Model Regulations is wide enough to include genetic monitoring.