In the first investigation of its kind, WorkSafe Victoria is investigating the COVID-19 death of a 46-year-old call centre Serco employee, Martin Blight, who was identified as a close contact at his workplace’s exposure site.
The investigation was commenced following pressure from the Australian Services Union (ASU) for the workplace regulator to make inquiries into the death. Mr Blight reportedly tested positive on 6 September 2021 and his symptoms gradually become worse before being hospitalised on 11 September 2021 and dying two days’ later.
On the circumstances surrounding the worker’s death in the context of COVID-19, ASU Secretary Matt Morey stated that “by law, employers are compelled to ensure that their employees are provided with safe workplaces and safe working conditions, particularly during a global pandemic”. On this basis, Mr Morey confirmed that “the ASU will be calling for, and supporting, a WorkSafe investigation into circumstances around the death of Martin Blight”.
The outcome of the investigation is certain to be of interest to employers, who may find themselves liable for COVID-19 related illness and death if they fail to provide a safe working environment for their employees with respect to the pandemic. This consideration is particularly topical with vaccination rates increasing across the country and a return to work just over the horizon.
The model Work Health and Safety laws require employers to take care of the health, safety and welfare of their workers, including themselves and other staff, contractors and volunteers, and others (clients, customers, and visitors) at your workplace. This includes:
- providing and maintaining a work environment that is without risk to health and safety;
- providing adequate and accessible facilities for the welfare of workers to carry out their work; and
- monitoring the health of workers and the conditions of the workplace for the purpose of preventing illness or injury.
SafeWork Australia provide some practical examples of the duties that employers have with respect to the COVID-19 Pandemic and how to fulfill these duties:
Duty to Workers
Employers must eliminate the risk of exposure to COVID-19 if reasonably practicable, if not reasonably practicable they must minimise the risk of exposure to COVID-19. Managing risk to exposure may be done in any of the following ways:
- considering working from home arrangements;
- requiring workers to practice physical distancing;
- requiring workers to practice good hygiene (e.g., through workplace policies and ensuring access to adequate and well stocked hygiene facilities);
- requiring workers to stay home when sick;
- cleaning the workplace regularly and thoroughly; and
- providing information and training.
Duty to other people in the workplace
Employers must ensure the work of their business or undertaking does not put the health and safety of other persons (such as customers, clients and visitors) at risk of contracting COVID-19, for example, by:
- requiring them to practice physical distancing, including through contactless deliveries and payments;
- requiring them to practice good hygiene; and
- requiring others to stay away from the workplace, unless essential, e.g., such as family, friends and visitors.
Duty to maintain the workplace and facilities
Employers must maintain their workplace to ensure the work environment does not put workers and others at risk of contracting COVID-19, for example by:
- conducting regular and thorough cleaning;
- restructuring the layout of the workplace to allow for physical distancing; and
- limiting the number of people in the workplace at any given time.
Duty to consult
Employers must consult with workers on health and safety matters relating to COVID-19. When consulting, they must give workers the opportunity to express their views and raise WHS concerns. Employers must take the views of workers into account and advise workers of the outcome of consultation. Circumstances in which employers must consult with employees include:
- when a risk assessment is being conducted;
- when decisions on control measures to manage the risk of exposure to COVID-19 are being made (e.g. decisions on working from home arrangements, or restricting the workplace to allow for physical distancing);
- when decisions about the adequacy of workplace facilities allowing for control measures are being made; and
- when changes that may affect the health and safety of workers are being proposed.
Policies and Procedures
In light of the above WHS duties of both employers and employees, having a COVID-19 Safety Policy in place is essential to provide employees with effective guidance on safe return-to-work procedures and the facilities, resources, and training available to employees to assist in the minimisation or elimination of exposure to COVID-19 in the workplace. We strongly recommend that employers have such policies in place before commencing a return to work.
If you have any questions about employer obligations surrounding work health and safety considerations with respect to COVID-19 please do not hesitate to contact Nick Stevens, Luke Maroney or Daphne Klianis.