In brief - in light of the recent easing of restrictions throughout the country and particularly in Queensland, employers and landlords in the retail, office and hospitality sectors need to consider the safe operation of their workforce, premises and tenants throughout the COVID-19 pandemic. 

In anticipation of the gradual easing of restrictions, SafeWork Australia published an information toolkit which provides comprehensive information on the obligations of employers, landlords and tenants, together with guidance on safe and effective work practices. 

Overview of the guidelines 

SafeWork have created over 1300 different web pages of COVID-19 related work practices applicable to 23 different industry sectors. These guidelines are intended to act as a framework for employers, landlords and tenants to use when implementing new workplace practices and policies when operating throughout the pandemic. 

Legal obligations 

Along with the guidance from SafeWork, which is discussed below, employers still need to ensure they understand their legal obligations when returning to the workplace. These include:

  • Work Health and Safety Laws - require that employers must ensure, so far as reasonably practicable, the health and safety of workers and others in their workplaces. This may include taking reasonably practicable steps to protect against the risk of infection, particularly of people in high risk groups. Employees have similar duties to ensure their safety and the safety of others. 

Employers should also consider conducting risk assessments of the workplace and implementing strategies to reduce the risk of infection once employers return to the workplace. 

Employers may need to identify if there are any employees who are vulnerable, or live with people who are in a high risk category, and manage the risk accordingly. 

Any changes to the workplace or in respect of employee terms and conditions should only be implemented after consultation with affected persons.

To reduce the exposure of COVID-19 to employees, employers may also need to provide additional training (e.g. how to properly use personal protective equipment (PPE), etc), resources (e.g. PPE and sanitation stations), modifications to the way work is done, particularly in regards to the use of shared spaces, changes to start / finish times, access to buildings and guidance around the use of public transport. 

  • Fair Work Act 2009 (Cth) - employers have obligations regarding personal and carer’s leave provisions in the National Employment Standards and are required to consider flexible workplace requests. 

Employers should consider what directions might be reasonable in respect of employees who refuse to return to the workplace. Where an employee (or a member of their household) is at particular risk, it may not be reasonable to require a return to the workplace if an alternative work arrangement is possible (e.g. like working from home). 

Employers would face particular legal risk (including discrimination claims, constructive dismissal claims, workers compensation claims or adverse action claims) where employees are required to return to work in circumstances where they have demonstrated that they are at risk if they do, and alternative work arrangements are available. 

Union right of entry may also be relevant, particularly where employers are trying to limit non-essential workplace visitors.

  • Anti-Discrimination Laws - employers have obligations to prevent discrimination based on imputed disability (including illness) and race. Employers should not discriminate against a person raising a health and safety issue. Employers should also ensure that any plans to return to the workplace do not unlawfully discriminate against any group of people directly, or indirectly.

  • State Public Emergency Laws - employers may be subject to financial penalties if they fail to observe health directions concerning the pandemic. Employers may need to consider if any employees are still under mandatory quarantine. Employers may consider asking employees to produce a medical certificate before returning to the workplace, or asking them to download the COVID-Safe app.

  • Industrial Instruments - employers should review their industrial instruments to ensure any actions they take in terms of leave, stand-down and flexible work arrangements are taken are in line with these instruments, and after consultation with the workforce. 

Property Related Guidelines

Hospitality

With the National Cabinet agreeing to allow restaurants, cafes and licensed venues to gradually reopen, the hospitality industry will need to ensure they reopen in compliance with their health and safety duties to their workers and customers. 

Having regard to the size of the industry and the frequency of human interaction, SafeWork released a comprehensive set of guidelines for the hospitality industry including but not limited to emergency plans, physical distancing, monitoring, hygiene, cleaning and more. 

Firstly, employers are required to prepare an emergency plan which must set out the requirements and instructions for workers and patrons in the event of an emergency. Employers are also required to reconsider and, if necessary, redevelop their current emergency plans to ensure compliance with COVID-19 health directions. 

With restaurants, cafes and licensed venues often taking up confined spaces, it is important for employers to bear in mind social distancing requirements. In order to reduce the number of breaches of health directions in the hospitality sector, SafeWork has released several control measures such as minimising the number of people within an area at any time, separating dining tables and bar chairs, staggering start and finish times, moving work tasks to different areas of the workplace and ensuring each worker has their own equipment and tools. 

SafeWork also emphasised the need for employees to consistently and thoroughly wash their hands to avoid the spread of COVID-19 through the kitchen and service of food and beverages. 

Office environments

As the return to workplaces gathers momentum, a return to working in commercial office buildings is likely to occur. 

SafeWork guidelines encourage employers occupying office spaces to redesign the layout of the office to ensure that workers are 1.5 metres apart at all times. This can include reconfiguring office desks and restricting movement throughout the office by creating pathways and spreading out furniture. In addition, SafeWork has encouraged the use of floor and/or wall markings and signage to identify 1.5 metres distancing requirements. 

In changing the layout of the office, it is important for employers to consider the need for employees and/or visitors to safely enter, exit and move about the workplace under normal working conditions and in an emergency, without risks to their health and safety so far as is reasonably practicable. 

Spaces within offices that present significant risk include common areas such as kitchens, break rooms, bathroom facilities and lifts. SafeWork recommends implementing policies that reduce the number of workers utilising these areas at one time, such as staggering meal breaks and start times and implementing measures in waiting areas for lifts. SafeWork has also published policies to implement for deliveries, contractors and visitors attending the workplace.

With respect to the office, landlords and/or building management are required to implement a master plan for all tenants and patrons to follow during an emergency. This is in addition to the emergency plan required to be implemented by employers with respect to their exclusive office space. 

Another key consideration is how workers will be able to use lift facilities whilst adhering to the social distancing guidelines. The practices and policies surrounding lift use are predominantly an issue for landlords and/or building management, however it will also be relevant to employers where employees must access premises via lifts. In order to facilitate the safe return to work whilst maintaining the efficient use of lift services, SafeWork advises that there is no requirement to provide 4 square meters of space per person in lifts. It is still important however, to ensure, as far as reasonably practicable, that people maintain physical distancing in lifts and lift waiting areas. 

Although SafeWork suggests it is safe to be within 1.5 metres of another person when using a lift for a short period of time, it is recommended that:

  • The number of workers arriving and leaving buildings is reduced (e.g. staggered start and finish times);

  • Working from home arrangements be maintained where possible;

  • Lift programming be changed to facilitate more efficient flows of users (e.g. decrease the time the doors stay open or assign lifts to certain floors based on demand);

  • Physical distancing is maintained in lifts to the extent reasonably possible;

  • Workers practice good hygiene in lifts; and

  • High touchpoints in lifts such as lift buttons and handrails are cleaned regularly. 

If a landlord and/or building manager intends to create designated lift waiting areas in the lobby area, it is recommended that signage be placed in these areas to remind workers to exercise good hygiene practices and to facilitate the safe and efficient flow of people using the lifts. 

Retail

The gradual easing of restrictions has also permitted the reopening of retail shops and shopping centres. Accordingly, employers of retail shops will need to be familiar with the SafeWork guidelines governing the safe operation of retail shops throughout the COVID-19 pandemic and beyond. 

Similar to the hospitality and office sectors, SafeWork has released a comprehensive set of guidelines. Firstly, retailers are required to prepare an emergency plan which must set out the requirements and instructions for workers and others in the event of an emergency. In addition, retailers are required to reconsider and, if necessary, redevelop their emergency plans to ensure compliance with COVID-19 restrictions. Relevant to shopping centre landlords, there must be a master emergency plan in place for all retailers/tenants to implement and follow.

Combined factors such as confined spaces, numerous shoppers browsing items and entering and leaving the shops, may lead to an increased risk of contracting COVID-19 in retail shops. Accordingly, SafeWork's guidelines require retailers to reconfigure shop layouts to ensure employees and customers are able to navigate their way around the shop without breaching the 1.5 metre social distancing health direction. For example, retailers may need to spread out furniture and/or product displays or place wall marks and signage to identify 1.5 metres distancing. In circumstances where it is impossible for employees to adhere to the social distancing requirements, then SafeWork directs the implementation of further measures including PPE. 

Furthermore, SafeWork recommends the implementation of safe practices such as exercising good hygiene for both shoppers and employees, thorough cleaning and ensuring safety equipment such as masks, gloves and other PPE is available. In this regard, SafeWork has released policies and practices for retail shops to consider and adopt such as encouraging contactless payment, developing infection control policies, having customers pack their own shopping, providing alcohol-based hand sanitiser, training workers and providing adequate and accessible washroom facilities. 

Given that COVID-19 is incredibly contagious and spreads through respiratory droplets produced when an infected person coughs or sneezes, it is important retail shops adopt and implement daily cleaning and disinfecting measures. To assist with such measures, SafeWork provides guidance on how to effectively clean a shop, how often it should be cleaned, the areas that should be prioritised, and what to do if the shop has been exposed to a confirmed case of COVID-19. 

What can employers and landlords do to prepare?

Employers and landlords should review the guidance provided by SafeWork to ensure:

  • They are undertaking risk assessments of their workspaces to identify risks and implement strategies to reduce risk. This includes specifically identifying and managing workers who are considered vulnerable and at risk of COVID-19;

  • They are consulting workers and tenants when they are making changes to the workspace in accordance with the WHS laws and industrial agreements; and

  • That, in addition to the SafeWork guidance, they are adhering to their legal obligations to their workers, tenants and other visitors to the workspace.

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 2020.

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