After WFH, WTF* for WHS? (*”What Then Follows”, obviously)

The Sixth Circuit Court of Appeals in the US said in a recent decision, “While the law may take periodic naps during a pandemic, we will not let it sleep through one” (and if this is correct in the US, it may explain a report about a Florida judge upbraiding US lawyers for appearing at video link hearings whilst still under the covers).  Work health and safety law in Australia, however, never sleeps (because hi-vis pyjamas are not terribly flattering, and steel-cap slippers surprisingly uncomfortable).  As Australian businesses begin to manage the return of their employees to work (either from periods of shutdown, or from periods of working from home), work health and safety issues should be front of mind (and sometimes, as in the example below, on the front fence, as well).

There are a number of critical aspects of the “harmonised” (applicable everywhere except Victorian and Western Australia) work health and safety legislation which should guide your organisation’s approach to WHS compliance as COVID-19 restrictions begin to lift:

  • the Section 19 “primary duty” – it is important to remember that the Section 19 primary duty has two limbs. The first is the duty to workers, and the second is the duty to ensure, as far as is reasonably practicable that the health and safety of other persons is not put at risk from work carried out”.  This means that you need to take into account people who will be affected by the way that work is carried out – putting all your staff in Hazmat suits behind an inch of plexiglass might help with the first limb, but if they are doing so in order to serve customers who are jammed into a small enclosed space, the second limb will not be satisfied;
  • the Section 27 officer due diligence duty – as with every other aspect of work health and safety law, officers (such as company directors) have due diligence obligation to ensure that their organisation complies with safety obligations.  Company boards will no doubt be spending a lot of time considering the economic fallout from COVID-19 and the measures put in place to curtail it, but if the board papers don’t also include information to enable directors to satisfy themselves that the company is dealing with the safety fallout as well as the economic fallout, directors are not doing their jobs (and can be personally liable as a result);
  • the Section 46 “horizontal consultation” duty – where more than one person has a safety duty in respect of the same matter, each of those people must consult one another.  So if your business operates from a shop in a shopping centre, or from one office in an office building, you need to be speaking to your landlord to see what they are doing to discharge their safety obligations in respect of common areas that your workers need to pass through in order to get to work.  Equally, amongst the safety lessons which will in due course arise from the Cedar Meats COVID-19 cluster in Victoria, press reports suggest that the extent of consultation between Cedar Meats and one of its labour hire suppliers (both of whom had safety duties in relation to work carried out at Cedar Meats) might not have been as effective as they could have been.

It is also important to remember (particularly in a context where there has been so much media commentary about personal protective equipment) that personal protective equipment is the lowest level in the hierarchy of safety control measures.  That hierarchy is usefully demonstrated by Safe Work Australia’s diagram:

hierachy of contorls

One compelling reason for staying at home unless you have good reason for leaving is that the front door of your home is more effective at preventing coronavirus transmission than any mask, and the front door of your workplace should also be deployed, as far as possible, as a barrier against the coronavirus.  This means directing attention to the way in which (and where) work is carried out – and in particular, eliminating the risk that people will transmit coronavirus by not putting people in a position where they are able to do so.

This may also mean separating work into component parts – for example, no matter how much constant Zoom meetings during WFH are getting up your nose, it has to be accepted that a nasopharyngeal swab can’t be collected by video link.  However, what can be done by video link is the collection of information (and triaging which follows as a result), so if personal contact cannot be eliminated, it can at least be minimised.  Doing what is reasonably practicable to ensure health and safety means that risk minimisation is required if risk elimination is not possible.

Thinking about the way in which work is performed requires you to first have a complete understanding of what work is performed in the business (which is also required by the second of the elements which make up the due diligence duty).  Safe Work Australia has prepared industry guidance in relation to a number of different industries which is a good starting point, but there is no substitute for a complete audit of what work is being performed, what needs to be performed, in the business.  What might have been “needed” pre-COVID-19 may not, as it turns out, be quite unnecessary now – in particular, all those meetings that you’ve been subjected to, but which really should have just been emails, might need to start being emails after all.

Finally, if you’re wondering, “what’s the role of the Government’s COVIDSafe app in our WHS compliance system?”, the short answer is “none”, and the longer answer is “wrong way, go back”.  The legislation concerning the app (which will be introduced to Parliament this week) creates an offence punishable by up to 5 years’ imprisonment if a person imposes a requirement on another person to download the app (or refuses a person access to premises,  or refuses to supply services because the person has not downloaded the app).  So you can’t force your employees to download, or use, the app, and nor can you deny entry to customers unless they are running the app.

More importantly, the app is not going to tell you whether a person in your workplace has COVID-19 or has been exposed to coronavirus.  Rather than having a record of which people have been closer than 1.5m to to one of your employees for more than 15 minutes, the best step is to  to design work so that unknown people are not spending 15 minutes within 1.5 metres of your employees. The next best step is a manual record which enables such  people to be identified – if your workplace doesn’t already have a sign-in register for visitors, then if you still need to receive visitors, either keeping such a register, or keeping individual diaries as has been proposed in New Zealand, will assist in the response if a COVID-19 carrier comes into your workplace.

The lasting consequences of the coronavirus will change many things about the way we work (some perhaps even for the better – few will mourn the demise of “hot-desking” if from now on it is replaced by “bleach-desking”, or by a more literal form of “hot-desking” where all communal work spaces are periodically burned to the ground, and rebuilt, as an extreme form of disinfection).  However, the WTF (Well Trained Fundamentals) of work health and safety compliance remain the same, and there is no workplace in which your WHS response can afford to be WTF (either because it is  “Worse Than Fantastic”, or because, “We Thoroughly Failed”).

For more on our work health and safety law capabilities, contact Leonard Lozina or Angus Macinnis

Angus is presenting a webinar on this topic for Legalwise Seminars on 20 May 2020, so if that sounds like the sort of thing you would be interested in, you can find a more detail about that by clicking here

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May 10
Work health and safety