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Regulatory approach to Australian WHS legislation for COVID-19

Australia's work safety authorities have issued a statement clarifying their approach during the COVID-19 pandemic. The statement applies to all WHS regulators in jurisdictions that have implemented the model WHS laws, as well as in Western Australia but excluding Victoria at this time.

This statement sets out the enforcement approach that the regulators will take to ensure compliance with Australian laws during the pandemic. The regulators recognise that the pandemic has created an exceptional set of circumstances and will have significant impacts on a PCBU and employers, workers, officers and others with duties under WHS laws.

Regulators

Regulators, including Workplace Health and Safety Queensland, will take a supportive and educative approach to compliance provided duty holders have made genuine attempts to comply with requirements and where compliance is affected due to factors outside their direct control. However, regulators may use enforcement tools where appropriate, particularly where actions or omission have resulted in serious risks to workers or the community.

In particular, WHS regulators will take into account an employer's ability to meet its WHS duties given the constraints associated with the pandemic. This may include duties related to training, such as participation in face-to-face training and practical hands on training demonstrations, working from home arrangements, and provision of hygiene products.

WHS regulators will continue to respond to matters involving serious incidents or fatalities in the usual way, including seeking evidence to determine causation or requiring implementation of 'make safe' provisions. The method of doing this may vary depending on the site, emergency services on site or other ways of gathering evidence and information.

Regulators will continue core administrative functions such as processing high risk work licences but most campaigns and proactive assessment activities will be postponed and face to face interactions minimised. All non-essential meetings, travel or events will also be postponed or cancelled, as appropriate.

Employers

Under nationally agreed guidelines, all employers must prepare and take action to protect workers and others at their workplace from the risk of exposure to COVID-19 so far as is reasonably practicable. They should have a plan in place to respond to the crisis and review their exposure and infection control policies and procedures, while promoting social distancing, good hand and respiratory hygiene and increased cleaning of the workplace.

Employers also should develop and implement safe systems of work (in consultation with workers and/or HSRs) that take into account directions and advice provided by health authorities, and keep monitoring the situation as it develops.

Health and Safety Representatives (HSRs)

HSRs are encouraged to work with employers on WHS risks and controls. HSRs are entitled to monitor the rate of exposure and infection of illness or disease in the workplace and to work with employers to implement appropriate controls. They are not entitled to personal medical information of other workers without the consent of the worker.

Workers

Workers have obligations under law to do what is reasonably practicable to protect themselves and others at the workplace. If a worker believes they are at risk of infection of COVID-19 and they have been at work, they should inform their manager or WHS representative as soon as possible and if they are not satisfied with the response, they should contact their regulator.

Further information

The statement has been published to safeworkaustralia.gov.au.