Coronavirus (COVID-19): Advice for PCBUs

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Background

Australia is continuing to closely monitor an outbreak of respiratory illness caused by a novel (new) coronavirus (COVID-19). 

On 11 March 2020, the World Health Organization (WHO) declared COVID-19 a pandemic (an infectious disease outbreak that spreads on a global scale). While the majority of confirmed cases of COVID-19 have been reported from mainland China, cases have been reported in over 100 other countries and regions, including large numbers of cases in Italy, Iran and the Republic of Korea.

Cases of COVID-19 have also been confirmed in Australia. The situation is changing rapidly. You can access the latest information on COVID-19 from the Australian Government Department of Health. 

Currently in Australia, people most at risk of contracting the virus are people who have:

  • been in a high-risk country or region recently, or
  • been in close contact with someone who is a confirmed case of COVID-19.

Managing the risks from COVID-19 

The model Work Health and Safety laws

The model Work Health and Safety (WHS) laws require a person conducting a business or undertaking (PCBU) to ensure, so far as is reasonably practicable, the health and safety of their workers and others at the workplace. This includes providing and maintaining a work environment that is without risk to health and safety and adequate facilities for workers in carrying out their work, so far as is reasonably practicable.

To comply with the model WHS laws, you must identify hazards at the workplace and the associated risks, and do what is reasonably practicable to eliminate those risks, or where this is not reasonably practicable, to minimise those risks.

Whether a control measure is reasonably practicable to implement involves consideration of what is able to be done to manage a risk and whether it is reasonable in the circumstances to do so. The likelihood of the risk occurring, the degree of harm that might result and the availability and suitability of a control measure are key considerations in determining what measures are reasonable. Further general guidance is available in the model Code of Practice: Managing the work environment and facilities.

What should a PCBU do to protect workers and others at a workplace?

Under the model WHS laws, PCBUs must have measures in place to eliminate or manage the risks arising from COVID-19. 

To do this, you should keep up to date with the latest COVID-19 information and advice to ensure that any action taken is appropriate. This includes closely monitoring the information provided by the Australian Government Department of Health, the Smartraveller website and advice from state or territory government agencies, including health departments and WHS regulators. See Information and Resources section below for links to these agencies.

You may not be able to completely eliminate the risk of workers contracting COVID-19 while carrying out work. However you must do all that is reasonably practicable to minimise the risk of workers of contracting COVID-19. 

What control measures will be reasonably practicable will depend on the work being carried out by workers and particular workplaces. Generally, you should:

  • determine appropriate control measures in consultation with workers, their representatives and taking account of official information sources
  • implement those measures and clearly communicate them to all workers, including providing clear direction and guidance about what is expected of workers 
    • workers should know when to stay away from the workplace
    • what action to take if they become unwell, and 
    • what symptoms to be concerned about 
  • continually monitor relevant information sources and update control measures when and if necessary. PCBUs should continue to provide information to workers, including changes to control measures, as the situation develops
  • provide workers with continued access to official government sources for current information and advice
  • provide workers with appropriate personal protective equipment and facilities, and information and training on how and why they are required to use them
  • require workers to practice good hygiene, including: 
    • frequent hand washing 
    • limiting contact with others, including through shaking hands, and
    • covering their mouths while coughing or sneezing
  • require workers to stay away from the workplace if they are unwell and not fit for work, and encourage them to seek medical advice as appropriate
  • seek advice from health authorities immediately if there has been a confirmed case of COVID-19 in your workplace
  • limit access to the workplace by other people, unless necessary
  • reconsider work-related travel and implement other methods of communication
    • for example, rather than requiring employees to undertake air travel to attend face to face meetings, facilitate attendance by tele or videoconference
  • remind workers that they have a duty to take reasonable care for their own health and safety and to not adversely affect the health and safety of others. 
  • provide workers with a point of contact to discuss their concerns, and access to support services, including employee assistance programs
  • allow workers to access available entitlements in line with obligations under any applicable enterprise agreement, award, employees’ contracts of employment, and workplace policies.

 

When can a PCBU direct a worker to stay away from their usual place of work under the model WHS laws?

There is nothing in the model WHS laws that deals expressly with when a PCBU may direct a worker to stay away from their usual place of work. This includes when you can direct a worker to work from another workplace, including from home. Note: the model WHS laws have been implemented in all jurisdictions except Victoria and Western Australia. 

However, the model WHS laws require you, so far as is reasonably practicable, to ensure the health and safety of their workers and others at the workplace. To meet this duty, you must identify risks at the workplace, and do what is reasonably practicable to eliminate those risks, or where this is not reasonably practicable, to minimise those risks.

For example, in discharging your WHS duties you may undertake a risk assessment and form the view, based on all the available information from health authorities and having consulted with your workers, that an appropriate control measure to eliminate or minimise a risk to workers and/or other people at the usual workplace, is to require workers and other people to stay away from the usual place of work. Depending on the circumstances, you might also determine that it is appropriate for workers to work from another location, including their home. 

For other PCBUs this approach may not be reasonably practicable (e.g. a workplace that relies on specialised plant or equipment) but there might be other controls that would minimise the risk of infection such as implementing other forms of social distancing or delaying non-essential tasks. There is no one size fits all approach. 

The important thing is that you actively consider the context of your business or undertaking, the specifics of your workplace and all the workers and others to whom you owe a WHS duty and take every step you reasonably can to eliminate or minimise any risks to health and safety.

Of course, if you know a worker is confirmed to have COVID-19, you should ensure that the worker does not return to work while they are infectious. 

What else should a PCBU take into account when deciding whether a worker or other people need to stay away from their usual place of work?

To inform any decisions about attendance at the usual place of work, you should:

  • consult with affected workers and their representatives and, where relevant, Health and Safety Representatives 
  • consider what workplace or other laws might prevent the action being taken
  • keep up-to-date with information about the risk and appropriate control measures such as official information sources and guidance materials 
  • seek advice specific to their circumstances, including from employee and employer organisations and legal providers 

Sometimes controlling or minimising one risk to health and safety may mean that additional safety risks emerge that must also be eliminated or minimised. For example, if you direct workers to work from home, consider what other steps you may need to take to keep workers safe because your WHS duties will still apply if your workers are performing work at home. The Managing the work environment and facilities Code of Practice contains a Work environment and facilities checklist (see Appendix B) that you may wish to use to ensure any alternate work environment and facilities are suitable. 

Do I have to consult my workers about measures I put in place to minimise the risk of COVID-19?

When discussing health and safety matters with workers, a consultative approach should be taken to allow workers  to express views before any decision is made. 

Participation of your workers in discussions about health and safety is important, as they are most likely to know about the risks of their work. Joint involvement in identifying hazards and assessing and controlling workplace risks will help build worker commitment to this process and any changes that may result.

The model Code of Practice: Work health and safety consultation, cooperation and coordination can give you more information about your duties to consult.

Do workers or other people need to comply with a direction from a PCBU to stay away from their usual place of work?

The model WHS laws require workers and other people at workplaces to comply, so far as they are reasonably able, with a reasonable instruction given by a PCBU to allow the PCBU to comply with the WHS laws. This means that workers are required to comply with a direction by a PCBU to remain away from their usual place of work, if they were reasonably able to and the instruction was reasonable in the circumstances.

Can a worker refuse to come to work?

In some circumstances a worker has the right stop or refuse to carry out unsafe work. A worker has this right to cease work if there is a reasonable concern that the worker would be exposed to a serious risk to their health and safety from an immediate or imminent hazard. A worker must inform you as soon as they can that they have ceased work. A worker must also then be available to carry out suitable alternative work, such as working from home.

Health and Safety Representatives (HSRs) can direct a worker in their work group to cease unsafe work. HSRs can do this if:

  • they have a reasonable concern that a worker would be exposed to a serious risk to health and safety from an immediate or imminent hazard, and
  • they have already consulted and attempted to resolve the issue with the business or undertaking for whom the workers are carrying out work (unless the risk is so serious and immediate or imminent that it is not reasonable to consult first).

HSRs must inform the workplace of any direction that has been given to cease unsafe work. HSRs can only direct that unsafe work cease if they have completed their initial training under the model WHS laws.

 

Workers’ Compensation and COVID-19

As a national policy body, Safe Work Australia does not have a role in determining coverage or eligibility for benefits in workers’ compensation schemes. This is the responsibility of the Commonwealth, states and territories. Workers’ compensation arrangements differ across schemes however there are common threshold requirements that would apply in the case of COVID-19:

  • that the worker is covered by the scheme, either as an employee or a deemed worker
  • that they have an injury, illness or disease of a kind covered by the scheme, and
  • that their injury, illness or disease arose out of, or in the course of, their employment.

 

Compared to work-related injuries, it is more difficult to prove that a disease was contracted in, or caused by, particular employment. In the case of a virus such as COVID-19, establishing the time and place of contraction may become increasingly hard. Whilst the spread of COVID-19 is contained, it may be easier to establish whether contraction is work-related, for example, if in the course of their employment a worker travels to a high-risk area with a known viral outbreak or interacts with people who have contracted the virus. However, once the virus becomes more wide-spread in the local community, establishing the degree of contribution of a worker’s employment to their contraction of the virus will inevitably be more difficult.

Whether a claim for workers’ compensation for contracting COVID-19 is accepted will be a matter for the relevant workers’ compensation authority, applying their jurisdictions’ workers’ compensation laws. Workers’ compensation authorities will consider each claim on its merits, with regard to the individual circumstances and evidence. 

Information from WHS regulators and workers' compensation authorities

WHS regulators are responsible for enforcing and regulating WHS laws.

Comcare - Comcare has issued guidance for workers and employers on work health and safety and workers’ compensation in relation to the coronavirus outbreak. The information includes advice on WHS obligations, managing risks and compensation coverage.

SafeWork NSW - Coronavirus

Worksafe Victoria

Queensland - WorkCover QLD- Coronavirus (COVID-19) workplace risk management 

Northern Territory - NT Worksafe - Getting your workplace ready for COVID-19 (Coronavirus)

Tasmania - WorkSafe Tasmania - Novel coronavirus (COVID-19)

State and territory health departments and other agencies

New South Wales

Victoria - Department of Health and Human Services - Coronavirus disease (COVID-19)
Northern Territory - Department of Health - Novel coronavirus (COVID-19) latest updates

Australian Capital Territory - ACT Health - Latest information about novel coronavirus (COVID-19) in the ACT

Western Australia

Queensland - Queensland Health - Novel coronavirus (COVID-19)

Other sources

World Health Organization

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Fact sheets

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