Australian Health Department charged for H&S breaches leading to COVID outbreak

On 22 October 2021, the Health Department from the Victorian State in Australia, faced charges filed by SafeWork Australia relating to breaches of the Occupational Health and Safety Act 2004 (Act) that lead to a second, deadly, wave of COVID-19 last year in the State.

The charges were laid after a complex 15-month investigation conducted by SafeWork Australia, the Australian equivalent of WorkSafe New Zealand.

The inquiry found that several private security guards and workers contracted COVID-19 while working in the hotel quarantine system and spread it into their communities. That outbreak sparked a second wave in Victoria, which claimed more than 800 lives and caused months of lockdowns.

SafeWork charged the Department with 58 breaches of the Act.

Seventeen charges allege that the Department failed to provide and maintain, as far as reasonably practicable, a working environment that was safe and without risks for its employees. This includes failing to appoint infection control experts at hotels and failing to provide workers with training or instructions for the use of personal protective equipment.

Forty-one other charges include alleged breaches to people who weren’t employees, such as contracted security guards, for exposing them to risks to their health and safety. This included failing to adequately train them in infection control.

SafeWork has argued that these breaches put workers “at risk of serious illness or death through contracting COVID-19 from an infected returned traveler, another person working in the hotels or from a contaminated surface”.

Under the Act, the maximum penalty for a body corporate for each of the charges is A$1.64million.  This means that if all allegations are upheld, the Department could be penalized up to A$95.12million.

Given the New Zealand Health and Safety at Work Act 2015 is based on the Australian legislation,  the results of this prosecution may have implications for our local Health Authority. Importantly, this prosecution may also provide important findings that could impact on employers in the private sector, in terms of their obligations to protect employees and other persons. From what we know to date, arising from the charges laid in Australia, employers in New Zealand may need to ensure that:

  • They assess whether any roles in their business require PPE, and if so, provide this to employees and direct that this is worn (noting medical exemptions). This may include masks, face shields, and sanitiser through to full Hazmat PPE;
  • They assess the working environment, to ensure as far as reasonably practicable that this is safe for employees and other persons. This may include your own workplace through to where employees are required to work (noting a PCBU’s obligation to consult, co-operate and co-ordinate with other PCBUs); and
  • They consider whether they need to retain expert assistance in their business, noting that the science involved with Covid-19 is constantly evolving. Such expert assistance would depend on the nature of your business but could be from medical through to health and safety specialists.

Ultimately, given the speed that the Delta variant, and Government measures to contain it, are moving at, employers should at least assess their business and the roles within it to decide what reasonably practicable steps they need to take to ensure a safe workplace.

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