With the pandemic settling down and as people begin to return to work, WorkSafe Victoria is investigating employers regarding potentially unsafe practices relating to the management and control of COVID-19 in the workplace. We discuss WorkSafe’s approach and the likely key areas of focus in the investigations.
Increased enforcement of the OH&S Act following COVID-19 outbreaks
After issuing 58 charges against the Victorian Department of Health in respect of alleged breaches of the Occupational Health and Safety Act 2004 (Vic) (the OH&S Act), which could result in maximum fines totalling $95 million, it is clear that WorkSafe Victoria firmly has workplaces and businesses who did not have appropriate safety measures to manage and control COVID-19 in its sights. WorkSafe appears to be conducting a wide-reaching investigation into COVID-19 outbreaks in aged care facilities at the height of the pandemic in mid-2020. WorkSafe’s enforcement focus is not limited to the aged care sector, with WorkSafe investigating 24 businesses, including Bunnings and Bertocchi Smallgoods, in January 2021, and more recently charging an accommodation provider with unsafe COVID-19 related procedures in October 2021.
In light of this up-tick in enforcement action, it is likely that WorkSafe will investigate many more COVID-related breaches, especially in locations where COVID-19 outbreaks were recorded. However, we consider that WorkSafe will only issue prosecutions in the most serious cases.
Providing a COVID-19 safe workplace
The key obligations for employers under the OH&S Act in respect of COVID-19 are:
- they must provide and maintain for employees a working environment that is safe and without risks to health so far as is reasonably practicable1. This includes an obligation to provide and maintain safe systems of work; and
- they must ensure that persons other than employees (for example, contractors and visitors) are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer so far as is reasonably practicable2.
- In the context of COVID19, WorkSafe is investigating whether employers have discharged these key obligations by taking reasonably practicable steps to prevent or control outbreaks at the workplace(s) they control. The issues that arise include: whether employers had infection control procedures in place prior to us ever hearing in the term ‘COVID19’ in some environments, for example, aged care;
- whether infection control procedures and regular cleaning were implemented;
- the management of the entry and exit to workplaces, including touchpoint cleaning and how the entry of contractors, visitors and customers was managed;
- whether staffing levels were adequate and compliant with workplace capacity limits. In the context of health and aged care services, the additional issue of the segregation of staff treating COVID positive patients from staff treating patients without COVID19;
- the supply of, and training of staff in relation to the appropriate wearing of, PPE if applicable;
- in the context of health and aged care services, ensuring that COVID positive patients were quarantined entirely from the balance of patients or residents.
In our view, WorkSafe will inevitably discover practices and procedures implemented by employers that were not wholly effective or simply did not work. This is not unexpected given that the entire world was learning to manage a novel virus in the early days of the pandemic. However, as the pandemic wore on (and continues to wear on), there will be less room to move in terms of not having adequate and reasonably practicable measures in place to manage and control the risk of COVID-19 in the workplace. It goes without saying that we expect WorkSafe will vigorously investigate the circumstances of COVID-19 outbreaks which resulted in a death(s).
Given the sheer volume of COVID-19 outbreaks and the significant number of investigations recently commenced by WorkSafe, we are of the view that prosecutions will likely be confined to the most serious of breaches and / or large outbreaks where there is a clear failure to take reasonably practicable steps or precautions.
What this means for you - no Indemnity for fines
It is also relevant and important to consider that the Victorian Parliament recently passed the Occupational Health and Safety and Other Legislation Amendment Act 2021 (Vic) (Act) which received Royal Assent on 21 September 2021. Relevantly, the Act inserts new provisions into the Occupational Health and Safety Act 2004 (Vic) (the OH&S Act) which, amongst other things, provide that:
- all contractual terms indemnifying employers and/or persons for pecuniary penalties imposed under the OH&S Act are now void;3 and
- from 22 September 2022, it will be an offence to enter into, offer to enter into, or be a party to a contract that has the effect of indemnifying employers and/or persons in respect of any liability to pay pecuniary penalties imposed under the OH&S Act.4
Importantly, the amendments to the OH&S Act do not prohibit insurers from providing, and employers and/or persons from obtaining, cover for the costs of defending an investigation or prosecution. The amendments operate only to prohibit insurance cover for fines and/or penalties imposed under the OH&S Act.
What this means for employers is that any potential fine under the OH&S act arising out of WorkSafe’s investigations for COVID-19 outbreaks, or indeed any WorkSafe investigation, will be payable by the employer directly. Further, any person holding insurance that purports to indemnify any fine will be committing an offence from 22 September 2022.
This article was co-authored by William Harris.