Reporting COVID-19 cases and employees to safety regulators with new notification requirements in Victoria
Safety Regulators are requesting that employers notify them of COVID-19 issues that may impact on their workplace, with the Victorian Government amending legislation to make confirmed COVID-19 cases among employees and contractors a notifiable incident, which could result in a penalty if this is not notified.
On 28 July 2020, the Victorian Government introduced the Occupational Health and Safety (COVID-19 Incident Notification) Regulations 2020 in response to the increasing number of coronavirus cases. The Regulations expand the existing notification duty on employers under section 38 the Occupational Health and Safety Act 2004, requiring they notify WorkSafe immediately of confirmed COVID-19 cases among their employees and contractors.
Under the Regulations, an employer must notify WorkSafe immediately (and no later than 48 hours) if they become aware that an employee, or an independent contractor engaged by the employer, or if a self-employed person has received a confirmed COVID-19 diagnosis, and the affected person attended the workplace during the infectious period.
The ‘infectious period’ begins on the date 14 days prior to the onset of symptoms or a confirmed COVID-19 diagnosis (whichever comes first), until the date on which the person receives a clearance from isolation from the Department of Health and Human Services.
To notify WorkSafe of a positive COVID-19 diagnosis, employers should call the WorkSafe advisory service on 13 23 60.
Employers who fail to notify WorkSafe may incur a penalty of up to $39,652 (240 penalty units) for an individual or $198,264 (1200 penalty units) for a body corporate.
The Regulations are temporary and due to expire in 12 months, although this may be extended.
Issues may arise for some Victorian employers about whether a particular location where contractors are working is the employer’s ‘workplace’ for the purposes of notification. We recommend that employer seek advice on this issue if that is a concern, or notify WorkSafe on a qualified basis.
What’s happening in other states?
The following obligations are current as at 29 July 2020.
Safe Work Australia has advised duty holders that operate under a relevant Work Health and Safety Act (all jurisdictions except Victoria and Western Australia) to notify their regulator of a COVID-19 case in order to reduce the risk of transmission pursuant to the obligation to provide a safe workplace for their staff and for others who interact with that business or workplace. A confirmed case is not treated as a notifiable incident under these acts.
In the ACT, for example, employers are asked to report confirmed cases of COVID-19 to WorkSafe ACT.
Guidance material from other regulators also contains the following advice:
In NSW, an employer or contractor must notify SafeWork NSW of serious illnesses (which includes a confirmed diagnosis of COVID-19) if the person is required to have immediate treatment as an in-patient in a hospital, and the carrying out of work is a significant contributing factor to the confirmed infection.
In Northern Territory, an employer or contractor is required to notify NT WorkSafe where a person either requires immediate treatment as an in-patient in a hospital or dies from COVID-19, and the infection arises out of the conduct of the business or an undertaking. From 29 July 2020 WorkSafe Inspectors who discover breaches in circumstances which warrant a penalty, but are not serious enough to prosecute directly through the Courts, will be able to issue on the spot fines of $720 to individuals or $3,600 for a body corporate.
In Queensland, an employer or contractor must notify Workplace Health and Safety Queensland of a confirmed or probable case of COVID-19 as diagnosed by a medical practitioner if the carrying out of work is a significant contributing factor, or the person is required to have immediate treatment as an in-patient in a hospital.
In South Australia, an employer or contractor must notify SafeWork SA of a case of COVID-19 if it can be reliably attributed to a workplace exposure, and either results in treatment by a doctor within 48 hours of exposure to the virus, or results in death.
In Tasmania, an employer or contractor must notify WorkSafe Tasmania when it is confirmed that a person has contracted COVID-19, and the reason for infection is reliably attributable to carrying out work that involves providing treatment or care to a person, or the person is required to have treatment as an in-patient in a hospital, or the infection results in death.
Lastly, the position in Western Australia is different as the model Work Health and Safety Act has not been enacted in that state. Employers and contractors are only required to notify a case of COVID-19 to the Department of Mines, Industry Regulation and Safety, WorkSafe (WA Regulator) where the workplace is the cause (or suspected cause) of a death at a workplace. Otherwise, employers and contractors are not required to notify non-fatal incidents of COVID-19 to the WA Regulator, as WA Health are already notified of confirmed cases by medical practitioners.
Commonwealth Government bodies
Comcare advises that ‘Employers should notify Comcare of all confirmed COVID-19 cases that are work-related and arise from the business or undertaking of the employer (PCBU)’ including cases that involve employees working from home. It may also prudent for Commonwealth Government employers to notify State or Territory regulators when a case may affect another employer, for example in relation to the contractor, to assist with tracing.
Notification to Health Departments
As a matter of good practice and to assist with contact tracing, we also recommend that employers notify their relevant Department of Health (in addition to a Safety Regulator).
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