Given the Corona Virus’ ability to spread at rapid rates, it is important employers are aware of their obligations to their employees and other entrants to their workplace. 

General duty of PCBUs and employers

As COVID-19 is not typically a hazard associated with the nature of work in most occupations, it is therefore not considered an occupational disease.

However, PCBUs (persons in control of a business or undertaking) and employers do have a legal obligation to ensure the health and safety of their workers and other persons (eg customers, members of the public, etc), so far as is reasonably practicable. Generally, this extends to the requirement for the provision of:

  1. a safe work environment;
  2. safe systems of work;
  3. adequate facilities for the welfare of workers;
  4. information, training, instruction and supervision; and
  5. monitoring of health and conditions at work for the purposes of preventing illness.

As the presence of a Covid-19 infected person may pose a risk to the health of other workers and persons, PCBUs and employers must take proactive steps to prevent the spread of the disease in the workplace. These steps should pertain to those directions on measures provided by Australian authorities that are deemed necessary to stop or delay the spread of the virus.

As part of their duty, PCBUs and employers should be monitoring the most up-to-date advice from relevant authorities, such as the Australian Department of Health, state and territory health departments, Smart Traveller and the World Health Organisation. Taking these steps, and allowing them to form part of their overarching duty, will assist PCBUs and employers in assessing the evolving risk of COVID-19 spreading in the workplace, and in taking proportionate measures to address that risk.

As PCBUs and employers respond to the disruptions caused by the COVID-19 pandemic by adapting to altered working conditions and adopting new operational methods such as working from home arrangements, hazards being introduced as part of those change management processes must also be identified and considered. It is the PCBU or employer’s job to eliminate these hazards, or if elimination is not reasonably practicable, to minimise risks to the health and safety of workers “so far as is reasonably practicable”.

This threshold is determined objectively by reference to the standard of behaviour expected of a reasonable person in the duty holder’s position, subject to the same level or standard of duty. Consideration of what can be done in the circumstances for ensuring health and safety, and also whether those measures or steps are “reasonable, in the circumstances” must be undertaken. In healthcare settings such as hospitals, medical clinics, and pharmacies, exposure to COVID-19 is a hazard associated with the nature of work, and therefore clearly within the scope of an employer’s workplace health and safety duties. These PCBUs and employers should undertake a comprehensive risk management program to eliminate or minimise infection risks so far as is reasonably practicable.

Change management 

Whilst social distancing measures are being implemented, in order to remain operational, PCBUs/employers are being forced to respond to the disruptions by adapting to changed working conditions (e.g. increased workloads) and adopting new operational methods (e.g. work from home arrangements). Significant changes are being made to workplaces, working environments and systems of work. In light of these changes, PCBUs and employers are required to recognise, assess and control hazards and risks in the workplace. If necessary, review and revision of all existing control measures should be undertaken before a change is introduced at the workplace that is likely to give rise to a new or different risk to health or safety. This should be done where changes are made to:

  • the workplace or any aspect of the work environment; and/or
  • a system of work, process or procedure.

 

Worker Consultation 

Importantly, as part of the risk management and change management processes, PCBUs and employers must consult with their workers to detect hazards and control risks in the workplace. This is an important step as workers generally have greater insight on different elements of their workflows and are therefore well placed to identify hazards. This type of worker participation will also lead to greater awareness of, and commitment to, safety measures, because workers are actively involved in how decisions are made. If a workplace has health and safety representatives (HSRs), consultation with these representatives must also be organised.

 

Communication 

As part of the PCBU and employer’s duty to provide information and instruction, appropriate communication channels should be established and utilised to keep workers informed of the:

  • symptoms of COVID-19;
  • procedures to be followed when they have returned from overseas;
  • circumstances under which international and interstate travel are allowed;
  • steps to be taken if they feel unwell;
  • duty on them to take reasonable care of their own health and safety and that of others around them;
  • expectations in relation to the hygiene practices to be followed;
  • control measures being implemented to comply with WHS obligations as well as government directions; and
  • where they can seek support, whether that be internally from Human Resources/their Manager, or from external sources such as Beyond Blue.

 

This publication is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Readers should take legal advice before applying the information contained in this update to specific issues or transactions. For more information or specific advice on your circumstances please contact tracey@robinsonnielsen.com.au.