Recent Changes to Employers’ Duties under the Occupational Health and Safety Act 2004 (Vic)3 August 2020
Luisa Gonzaga (Partner) and Emma Bannister (Law Student)
On 28 July 2020, the Occupational Health and Safety (COVID 19 Incident Notification) Regulations 2020 (VIC) (Regulations) came into effect. The enactment of the Regulations is in response to the COVID-19 pandemic.
The Regulations will be revoked 12 months after it came into effect.
What is the notification requirements and who has the duty to notify
An employer and self-employed person who has management and control of the workplace has a duty to notify WorkSafe Victoria (WorkSafe) when becoming aware that:
- an employee or an independent contractor or a contractor’s employee (engaged by the employer) has received a confirmed COVID-19 diagnosis and has attended the workplace during the ‘infectious period’; or
- a self-employed person has received a confirmed COVID-19 diagnosis and has attended the workplace during the ‘infectious period’.
‘Infection period’ is defined in the Regulations as a period that begins either 14 days prior to the onset of the symptoms or a confirmed COVID-19 diagnosis (whichever occurs first), until the day on which the person received clearance from isolation from the Department of Health and Human Services.
The duty to notify is subject to the qualifier of ‘becoming aware’. This means, the duty is only triggered ‘after’ an employer or self-employed person has become aware of such a positive diagnosis that WorkSafe must be notified.
A failure to notify WorkSafe of a confirmed COVID-19 diagnosis is an indictable offence and attracts a maximum penalty of $198,264 (body corporate) or $39,652 (individual).
Notifying WorkSafe of a confirmed COVID-19 diagnosis
The employer’s duty to notify WorkSafe after becoming aware of a confirmed COVID-19 diagnosis is the same process as those set out under section 38 of the OHS Act, that is:
- By telephone: This is the fastest mode of notification. Once a telephone call is made, WorkSafe will provide a reference number which must be referred to when submitting the written notification form.
- In writing: Following notification by telephone, an employer must provide to WorkSafe within 48 hours a written record in the form approved by WorkSafe.
While the Regulations do not specify the requirement to keep the written notification form for a period of 5 years, it is our view that employers (and self-employed persons) must ensure that such a record is kept in accordance with section 38 of the OHS Act.
A failure to notify WorkSafe of a confirmed COVID-19 diagnosis (and to keep a record of the written notification) is an offence and attracts pecuniary penalties.
What employers must do in response to COVID-19?
There is a plethora of guidance material available to assist employers manage the risks associated with the effect of COVID-19.
When implementing control measures to combat the risks of COVID-19, employers should consider the following:
- the control measures must be specifically tailored to the risks associated with the operations of the business;
- horizontal consultation should occur with other duty holders where the work to be undertaken by each duty holder may interact with each other (for example, in a construction site where there could be multiple duty holders, or in logistic type arrangements);
- ensure personal protective equipment (PPE) is provided and there are clear instructions about their use and disposal;
- ensure there are clear instructions about the use of sanitisers and compliance with social distancing;
- there is clear communication about the employer’s requirements of when a person may be refused entry at the workplace, such as, if the person is exhibiting symptoms of COVID-19. The communication must be clear and be in different languages (if applicable) particularly, if the workplace has a diverse multicultural workforce; and
- continually assess and monitor the control measures implemented; and in the event of a diagnosis of COVID-19 being reported that a review of the measures is undertaken with specific focus on the potential root cause which may identify gaps in the systems of work.