Australia: COVID-19: Work health and safety legal update

Introduction

Under the workplace health and safety (WHS) laws across Australia, all organisations and officers have an obligation to eliminate so far as is reasonably practicable the risk of COVID-19 spreading and its impact to any persons (not just workers) in so far as the spread of the virus arises from the organisation’s activities.¹

What is my primary duty of care?

You have a primary duty of care to ensure the health and safety of workers and that the health and safety of other persons is not put at risk from the conduct of your business or undertaking. In order to meet this duty of care, you must take all reasonably practicable steps to eliminate the spread of COVID-19 within your workplace (and arising from your business activities), or if it is not reasonably practicable to eliminate it, then minimise it so far as is reasonably practicable.

REMEMBER: You need to consider workers and “other persons” such as clients, customers and other visitors to your workplace in your approach to managing COVID-19 risks.

What steps must be taken to meet the primary duty of care?

This will be different for different businesses, and the measures will change quickly over the next few weeks to months as the virus spreads and the risks increase.

You need to adopt a risk management approach for decision making in respect of COVID-19 risks – base your decisions and approach on data and currently available information about the COVID-19 disease.²

Do confirmed cases of Covid-19 have to be reported to the safety regulator?

Currently, all confirmed cases of COVID-19 within a workplace are required to be reported immediately to the relevant safety regulator for the state/territory. This may change if the numbers of infected people increase dramatically and confirmed cases are no longer treated as an in-patient in hospital. In that case, you should check the relevant safety regulator’s websites for guidance on what is a ‘notifiable incident’.

Who else do I need to consult with about confirmed cases of Covid-19?

The WHS Laws in Australia require you to consult, co-operate and co-ordinate your activities with other duty holders that hold a duty in relation to the same safety matter. This means you need to consult with the following people in relation to COVID-19 risks and the mitigation measures you will put in place to manage these risks:

1. employees;
2. landlords of workplace premises (regardless of whether this is specifically required or not under the lease);
3. for landlords – tenants of workplace premises;
4. other businesses within the area of the workplace;
5. customers, clients, contractors and service providers who have visited to the workplace.

As a recent example, Golden Plains Music Festival in Victoria, following a suspected case of COVID-19 of a festival attendee, notified its attendees, provided information to customers and the general public on its website and consulted with the Victorian Department of Health and Human Services.

Other useful resources

• Australia Department of Health
• US CDC
• Government of Canada
• UK National Health Service
• Risk-informed decision-making for mass gatherings during COVID-19 global outbreak
• CDC Mass Gatherings
• Interim US Guidance for Risk Assessment and Public Health Management of Persons with Potential COVID-19 Exposures
• Coronavirus: advice for NSW workplaces

Important note: These updates are applicable to Australian law only and are generic in nature. If you have any specific legal concerns relating to the impact of COVID-19 on your people or your business, please reach out to our pro bono team (ausprobono@nortonrosefulbright.com) and we will consider your pro bono legal request. If we aren’t able to help you, we will try to find someone else who can. This update is current as at 24 March 2020.