With COVID-19 creating widespread issues for employers, it can be helpful to consider what employers’ and others’ key obligations are under the Health and Safety at Work Act 2015 (the Act). While it is common knowledge that as a result of this virus workplace health and safety obligations come into play and need to be complied with, it is helpful to look at what exactly these obligations are.
Various parties have obligations under the Act, including PCBUs (which is a person conducting a business or undertaking – this includes companies and partnerships, as well as individuals), officers (which includes directors of companies and partners) and workers.
A key obligation on PCBUs is to manage risks. There is a duty:
to eliminate risks to health and safety so far as is reasonably practicable; and
if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.
In the context of COVID-19, elimination primarily involves the exclusion of people from the physical workplace (as opposed to the virtual workplace). During the lockdown, everyone is required to be at home unless they work in an essential business. If any worker in an essential business workplace poses a risk of having or harbouring the disease, the risk of transmitting the disease needs to be managed by excluding the worker from the workplace.
For workers in essential businesses who remain in the workplace, duty-holders need to minimise risks. This involves taking steps such as:
providing clear guidance on when workers need to stay away from work,
explaining how to practice good hygiene at work (including hand-washing and drying, and wearing masks and gloves where appropriate), and
introducing requirements to maintain physical distancing and avoid face-to-face meetings.
Minimising risks also includes carrying out a high level of cleaning of surfaces and prominently displaying relevant information to people working in or visiting a workplace. Certain essential businesses will require workers to wear PPE (personal protective equipment), such as for some personnel working in the health services sector. The key is: what is reasonably practicable? This will depend on, amongst other things, the workplace and the type of work being undertaken. WorkSafe has published guidance to help with the management of risks in essential businesses, which is essential reading for duty holders who work in such a business.
The health and safety of workers who are able to work remotely also needs to be managed. This involves consideration of the working from home set-up, in terms of the equipment used for the job. Has the equipment been arranged in a way that minimises the risk of harm, for instance in a way that is ergonomically correct? Have steps been taken to minimise the risks of worker stress and fatigue? This can involve thinking about how to replicate checks and balances that are in workplaces, in the home office environment, and how to record this has been done.
Under the Act, the primary duty of care on PCBUs includes obligations to:
ensure, so far as is reasonably practicable, the health and safety of workers…
ensure, so far as is reasonably practicable, the provision and maintenance of a work environment that is without risks to health and safety…
There are also obligations on PCBUs who manage or control a workplace to:
ensure, as far as is reasonably practicable, that the workplace and anything arising from the workplace are without risks to the health and safety of any person.
This means PCBUs owe obligations to people both inside and outside the workplace. In terms of meeting those obligations, being able to demonstrate the steps mentioned above will go a long way towards showing compliance.
The obligation on officers is to exercise due diligence to ensure the PCBU complies with its duties or obligations. These obligations are separate from the obligations imposed on PCBUs themselves, and anyone holding the position of an officer needs to be aware that the obligations (and therefore liability for non-compliance) are personal.
Workers’ obligations are to, while at work –
take reasonable care for his or her own health and safety, and
take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons.
In this context, this means workers need to take steps both to avoid contracting the disease, and to avoid spreading it.
Workers must also:
comply, as far as the worker is reasonably able, with any reasonable instruction that is given by the PCBU to allow the PCBU to comply with the Act or regulations, and
co-operate with any reasonable policy or procedure of the PCBU relating to the health or safety at the workplace that has been notified to workers.
Therefore if an employer issues a reasonable instruction, policy or procedure that relates to the eliminating or minimising the risk of COVID-19, for instance requiring an essential worker to work remotely, there is a direct obligation on the worker to comply with it.
Finally, there are obligations on PCBUs to engage with workers on health and safety matters, meaning sharing relevant information in a timely manner and giving workers a reasonable opportunity to express their views and raise work health or safety issues in relation to the matter.
In terms of the Act’s “teeth”, a failure to meet obligations can result in convictions and significant fines on any duty holder, whether that is a PCBU, an officer or a worker. There are other tools in WorkSafe’s compliance toolkit too, including the issue of improvement or prohibition notices.
While these tools are available, at the time of publication of this article WorkSafe has clearly communicated that:
We won’t take enforcement action if the PCBU’s actions meet our expectations under HSWA, even if a worker or other person contracts COVID-19.
To help those with obligations under the Act manage in these unprecedented times, WorkSafe has also provided answers to many frequently asked questions arising from Alert Level 4, which is in force at the time of publication of this WorkSafe article.
By Michelle Hall Collins (Senior Associate)