In brief - Where workers are working at home, the completion of a work at home checklist, together with consultation, instructions and feedback, will assist to manage their health and safety.
Gatherings for the purpose of work still permitted
On 31 March 2020, a temporary order under the Public Health Act 2010 commenced. The Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (Order) makes two key directions:
that a person must not, without reasonable excuse, leave the person's place of residence; and
that a person must not participate in gatherings in a public place of more than two persons (exceptions apply).
Leaving the House
The Order provides examples of reasonable excuses for leaving the house, including:
obtaining food or other goods or services
travelling for the purposes of work or education if the person cannot do it at home
medical or caring reasons.
The full list of reasonable excuses can be found at Schedule 1 of the Order.
Gatherings for the purpose of work
The Order provides a number of exceptions to gatherings in a public place of more than two persons.
The Order provides a general exception for gatherings of persons "for the purpose of work" (for clarity, we note that this exception has limited effect if the business has been ordered to close to the public i.e. pubs or swimming pools).
"Work" is defined very broadly under the Order and simply states: "work includes work done as a volunteer or for a charitable organisation."
Notwithstanding the above broad exception, the Order also lists types of gatherings in the work context that are deemed essential and are therefore specifically exempt from the requirements of the Order. The following are some examples of work related gatherings that are considered essential:
Where gatherings are necessary for normal business of:
a disability or aged care facility;
an office building, farm, factory, warehouse or mining or construction site; and
a gathering at a school, university or other educational institution or child care facility.
Corporations that fail to comply with a direction under the Order are liable to a fine of $55,000 and $27,500 each day the offence continues.
Individuals that fail to comply with a direction under the Order face a maximum penalty of imprisonment for six months and/or a fine of up to $11,000 and $5,500 each day the offence continues.
Stand Down of Workers?
It is important to note that the Order does not provide any additional power that permits employers to stand employees down. Any decision to stand employees down should be in accordance with the Fair Work Act 2009 and any applicable enterprise agreement, award or contract.
Temporary Long Service Leave amendments provide greater flexibility
The NSW Parliament has temporarily amended the Long Services Leave Act 1955 to allow greater flexibility for employers and employees in relation to long service leave entitlements. The key changes include allowing:
long service leave to be taken without the requirement to provide one month's notice;
employees to take leave in shorter blocks (for example, one day per week) as opposed to one month blocks;
long service leave to be taken in advance; and
the postponement of a period of long service leave;
It is important to note that both the employee and employer must agree to the above arrangements.
We also note that the Act already contained provision for pro-rata of long service leave under certain circumstances. If an employee has completed five years of service they may be entitled to long service leave pro-rata if they resign and their reason for doing so falls within the definition of "domestic or other pressing necessity".
The legislation will have effect for six months from 25 March 2020 with provision to extend.
Work Health and Safety requirements
Safework NSW has issued a guideline on managing the risks to your workers in these unusual times. Where the business is allowed to continue operating, the Person Conducting the Business or Undertaking (PCBU) must take reasonably practicable steps to manage the health and safety of workers and others. This will include reinforcing the systems of consulting, educating and supporting workers. Following a risk assessment being conducted, implement the reasonably practicable controls of distancing and hygiene practices.
Where workers are working at home, the completion of a work at home checklist, together with consultation, instructions and feedback, will assist to manage their health and safety.
Reporting of COVID-19 incidents to Safework NSW
Safework NSW has now required the reporting of a person being admitted to hospital or suffering a confirmed COVID-19 infection from which the work was a significant contributing factor. It is suspected that the safety regulators in other jurisdictions will follow suit very shortly.
Safework NSW has advised that if the infection arose from the conduct of the business or undertaking then it must be reported to Safework.
Safework NSW has advised:
Businesses (and other PCBUs) are required to notify Safework NSW of serious illnesses (including COVID-19) arising out of the conduct of the business or undertaking:
illness requiring the person to have immediate treatment as an in-patient in a hospital
any confirmed infection to which the carrying out of work is a significant contributing factor, including any infection that is reliably attributable to carrying out work that involves providing treatment or care to a person, or that involves contact with human blood or body substances
This broadens the matters that would normally be reported to the safety regulator.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.