OHS Matters: COVID-19 (again!) What are the Implications for Employers?


We have heard the Premier of Victoria, Daniel Andrews, say that at one stage at least, 80 per cent of newly identified COVID-19 infections came from workplaces.

During Stage 4 all non-essential businesses in metropolitan Melbourne have been closed – and those that are still operating must have implemented a COVIDSafe plan by midnight August 7. In addition, workers needing to move outside their 5km from home, or who need to be out between 8pm and 5am must also have Permitted Worker Permits. These are measures being taken by the government to control Victoria’s ‘second’ and more serious wave of the Coronavirus pandemic.

Apart from the drastic financial effects of these measures on workers and employers/businesses, - what implications are there for employers if a worker contracts COVID-19 in the course of their employment?

Many employers/companies have had to reorganise their work and allow their employees to work from home. This has meant, perhaps, some extra expense, and a loss of ‘control’ over their workforce.

Another implication, also relatively ‘straightforward’ will be related workers’ compensation claims and possibly an increase in premiums. However, at the end of July there had been only 111 approved workers compensation claims relating to coronavirus. The majority of these were from teachers who suffered psychological stress. It is likely that there will be more claims from workers who have actually contracted coronavirus. For example, few, if any, workers from one of Victoria’s largest clusters at Cedar Meats Australia, have submitted WorkCover claims, despite least one worker spent several weeks in intensive care.

But what if someone dies?

In what may be the first reported fatality tied to a workplace infection, a Victorian chicken plant worker was found dead in his home on August 9 after contracting COVID-19. The 51 year old reportedly contracted the virus at the Golden Farms plant at Breakwater, near Geelong, which has been linked to 44 cases. The long-time United Workers Union member had been employed at Golden Farms for more than 15 years.

“This case highlights the absolute gravity of the current situation facing essential food workers. It is tragic that workers could contract this deadly virus simply because they have turned up to work to feed our communities,” said UWU’s Director of Food and Beverage Susie Allison. “Food workers across the country are putting their own lives and their family lives at risk by attending work to ensure our supermarkets remain stocked. Every measure must be taken to ensure their safety. In particular, workers must be provided with readily accessible paid pandemic leave so they are not forced to choose between keeping their workmates safe and no income or digging into sparse leave entitlements.”

But could there be more serious consequences for employers like Turosi, the parent company of Golden Farms. Could such employers end up with millions of dollars in fines or even a jail sentence? There has been a lot of discussion in the papers and elsewhere regarding the new workplace manslaughter provisions in the OHS Act and whether employers could find themselves charged under these provisions if a worker dies of COVID-19. My immediate reaction was that this was scare-mongering. This is despite Jill Hennessey, the Minister for Workplace Health and Safety, “confirm(ing) employers could face charges under newly introduced industrial manslaughter laws where they are found to have failed in duties of care relating to the spread of infections.” (from an article in the Australian Financial Review). I suspect, as does Kevin Jones (SafetyAtWorkBlog) that the Minister was responding to a question.
For an employer, or another duty holder, to be charged with the workplace manslaughter provisions of the OHS Act, that entity or person must have breached their duty owed by negligent conduct. So, non-compliance with their duties under the Act is not enough.

What is negligent conduct in this context? Under these provisions, conduct will be considered ‘negligent’ if it involves both ‘a great falling short of the standard of care that a reasonable person would have taken in the circumstances’ and ‘a high risk of death, serious injury or serious illness’.

WorkSafe chooses its prosecutions carefully: it considers, amongst other things, the likelihood of success. It weighs up all factors. In my view it is unlikely to make its first attempt to prosecute an employer under these new provisions a case where a worker has died of coronavirus during a pandemic of a novel virus about which we knew little and are learning all the time. It should be remembered that the duties of employers are qualified by ‘so far as is reasonably practicable’ – and in these circumstances the defence team would probably be able to put together a good case that knowledge gaps, confusing directions, and other matters contributed to the risk which resulted in the death of a worker; that the employer, under much pressure, did ‘the best they could in difficult/impossible circumstances’.

The regulator is much more likely to prosecute a case that is much clearer, less tenuous. What sort of case?

On July 27 this year, residential construction company, Seascape Constructions Pty Ltd, was convicted and fined $850,000 in the Melbourne County Court after a worker fell to his death on a building site in Melbourne’s north. This was the second highest fine for a workplace fatality – in September 2017 a contractor to a major poultry producer was fined over $1.37m – but went into liquidation.

Seascape Constructions pleaded guilty to failing to ensure that persons other than employees were not exposed to risks to their health and safety by failing to prepare and conduct work in accordance with a safe work method statement (SWMS). Seascape engaged the carpenter and a handyman via the website Gumtree to work at the site, including to lay flooring.

The workers were not provided with a SWMS before commencing the high risk construction work or while performing the work and that no safety procedures or safe working methods were discussed.

What were the legal requirements?

Apart from the ‘general duty of care’ under s21 of the OHS Act, construction is classified as a ‘hazardous industry’ under the OHS Regulations (2017). Where there is a risk of a person falling more than 2 metres, this becomes ‘high risk’ construction work, with consequently more requirements. This concept was first introduced in the 2007 regulations, so industry has been working under these rules for over 10 years. For any high risk construction work there is an absolute requirement to have a SWMS. The regs are clear:

Safe work method statement required for high risk construction work

• An employer or self-employed person must not perform high risk construction work if there is a risk to the health or safety of any person arising from the work, unless –

a. A safe work method statement is prepared for the work before the work commences; and

b. The work is performed in accordance with the statement.

In this case there seems to be a clear argument that the behaviour of this employer would satisfy the ‘negligent conduct’ definition: ‘a great falling short of the standard of care that a reasonable person would have taken in the circumstances.’ Of course Seascape could not be charged under the workplace manslaughter provisions, as these came into effect on July 1 this year, and were not retrospective.