Australia

15 Jul 2020
What risk mitigation efforts should the prudent employer take before employees return to the workplace?

Employers (known as ‘persons conducting a business or undertaking’) have duties relating to the health and safety of workers under work health and safety (WHS) legislation.

Under WHS legislation the primary duty is to ensure, so far as reasonably practicable, the health and safety of workers and that the health and safety of other persons (including clients, customers and other visitors to the workplace) is not put at risk from the conduct of the business or undertaking.

In order to meet this primary duty, employers are required to:

  • eliminate risks to health and safety, so far as is reasonably practicable; and 
  • where it is not possible to eliminate, minimise risks to health and safety, so far as is reasonably practicable. 

Therefore, employers are required to manage coronavirus risks just like any other health and safety risk – i.e. they must take all reasonably practicable steps to control the spread of coronavirus within their workplace and arising from their business activities so far as is reasonably practicable. 

Employers need to adopt a risk management approach in respect to coronavirus risks, which is based on data and the currently available information about the coronavirus disease and ways to control the risks so far as is reasonably practicable. 

The Australian National Cabinet has agreed ten National COVID-19 Safe Workplace Principles which include, amongst others, that:

“4. As COVID-19 restrictions are gradually relaxed, businesses, workers and other duty holders must work together to adapt and promote safe work practices, consistent with advice from health authorities, to ensure their workplaces are ready for the social distancing and exemplary hygiene measures that will be an important part of the transition.

5. Businesses and workers must actively control against the transmission of COVID-19 while at work, consistent with the latest advice from the Australian Health Protection Principal Committee (AHPPC), including considering the application of a hierarchy of appropriate controls where relevant.”

The full text of the Principles can be found here.

In addition, the Australian Government has released the ‘3 Step Framework for a Covid0Safe Australia’.

Safe Work Australia has an information hub which contains a range checklists, guidance material and industry specific information which can be found here.

The States and Territories have also issued government directions which also need to be considered when considering risk mitigation. These can be found by following the links found here.

 
Who should be involved in the decisions to return to the workplace?

Under the WHS legislation there is a specific duty that requires businesses to consult with workers when identifying hazards, assessing risks and deciding on measures to control risks.

As noted above, the National COVID-19 Safe Workplace Principles contemplate that businesses and workers must work together to adapt and promote safe work practices, consistent with advice from health authorities, to ensure their workplaces are ready for the social distancing and hygiene measures.

 
What can the prudent employer do to ensure physical distancing in terms of the work space?

The Australian Government guidance is that 1.5 metre physical distancing between workers, customers and visitors should be maintained, in addition to ensuring that there is 4 square metres of space per person. However, there may be different numbers of persons that can gather and/or density requirements in the various States and Territories which can be checked at: https://www.healthdirect.gov.au/covid19-restriction-checker/activity. 

The steps that will be required will depend on the nature of the workplace, the nature of the tasks and will be a part of the risk assessment carried out. 

The information published by Safe Work Australia (including a checklist on physical distancing) contains the following suggestions, amongst others:

  • Calculate the area of the enclosed space (length multiplied by width in metres) and divide by 4. This will provide the maximum number of people that should be in the space at any one time.  
  • Consider and make adjustments to the layout of the workplace and workflows to enable workers to keep at least 1.5 metres apart to continue performing their duties.
  • Limit the number of people in the work space by facilitating work from home, spacing out the furniture, and splitting working shifts.
  • Postpone or cancel non-essential gatherings, meetings or training or use non face-to-face options to conduct them (e.g. video conferencing).
  • Place signage about physical distancing around the workplace and use electronic computer reminders or ‘floor monitors’.
  • Direct workers to keep 1.5 metres of distance between them in accordance with general health advice.

It will also be important to check what sub tenants/contractors/outsourced services are doing and consult with them about measures to eliminate or minimise the risks of exposure to COVID-19 so far as is reasonably practicable.

Practical tips:

  • Consider industry specific guidance on modifications to the workplace available from Safe Work Australia, regulatory authorities and various industry bodies.
  • Use signage to develop flow of travel through the office.
  • Inform and train workers, as necessary, in the use of the introduced risk control measures.
 
What can the prudent employer do to ensure physical distancing in temporal terms?

Maintaining physical distancing may also require other changes:

  • minimising the number of people within an area at any time;
  • limit access to the workplace or parts of the workplace to essential workers only;
  • staggering start, finish and break times where appropriate;
  • moving work tasks to different areas of the workplace or off-site if possible;
  • if possible, separating workers into dedicated teams and have them work the same shift or work in a particular area and consider whether these dedicated teams can have access to their own meal areas or break facilities; and
  • ensuring each worker has their own equipment or tools.

Changing hours of work to stagger arrival at the workplace or creating new teams or different shift patterns may require changes to the employees’ terms and conditions. At present many Modern Awards (which apply to employees in a range of industries and occupations) allow employers to make changes to employees’ working arrangements by unilateral direction. These provisions will cease to have effect at the end of June 2020 unless renewed by the Fair Work Commission. In the longer term, the best way to proceed with this is to obtain each employee’s express consent to the change. 

Practical tips:

  • Determine changes to working hours that may be required;
  • Determine the groups of staff and schedule groups to work together.
 
What protections should the prudent employer consider implementing, in addition to physical distancing?

In addition to checklists on physical distancing and guidance on preventing the spread of COVID-19, SafeWork Australia has produced checklists relating to the workplace; health, hygiene and facilities; and cleaning and disinfecting. The Safe Work Australia guidance includes the following:

  • You must direct your workers and visitors to the workplace to practice good hygiene while at the workplace. Good hygiene requires everyone to wash their hands regularly with soap and water for at least 20 seconds before and after eating, after coughing or sneezing, after going to the toilet, when changing tasks and after touching potentially contaminated surfaces.
  • Workplaces must be cleaned at least daily. Cleaning with detergent and water is usually sufficient. Once clean, surfaces can be disinfected. When and how often your workplace should be disinfected will depend on the likelihood of contaminated material being present. You should prioritise cleaning and disinfecting surfaces that many people touch.
  • [H]aving your system set to allow more air circulation in common areas and limiting or not using recirculated air and increasing outside air intake, if possible, may help minimise the risk of COVID-19 spreading in your workplace.

Whether employees should be provided with PPE will depend on the nature of the workplace and will be recommended as part of the risk assessment. 

SafeWork Australia has recently released a checklist on the types and uses of face masks and notes that the “Australian Government Department of Health does not generally recommend the wearing of face masks in the community. However, there may be occasions when it is recommended that the general public wear face masks…”. 

In Victoria, the Chief Health Officer recommends that adults living in areas under Stage 3 restrictions wear face masks when outside the home if it is difficult to keep 1.5 metre apart from other people. While PPE alone will not protect workers, employers must implement  a range of controls to limit the spread of COVID-19 including hygiene measures, physical distancing, cleaning/disinfecting.

Perspex screens (also known as sneeze guards) can be considered at workplaces where workers are in close proximity to each other for long periods. For example, a perspex screen could be considered where two workers work side by side or back to back for a shift.

 
How can an employer screen its employees, including temperature testing, COVID-19 testing and questioning? 

In relation to temperature testing, Safe Work Australia’s general guidance says:

“…[y]ou may want to monitor the health of your workers through administering temperature checks, as a preventative measure in managing a COVID-19 outbreak in your workplace. There may be times where this is required or reasonable, for example, where workers live together in accommodation such as FIFO or agricultural workers or in workplaces where vulnerable people are present, such as hospitals and aged care facilities.  

However, for many workplaces, there may be little benefit in conducting temperature checks on workers or others. This is because temperature checks will not tell you whether a person has COVID-19. It will only identify symptoms. It is possible that a person may be asymptomatic or be on medication that reduces their temperature. It is also possible that the person may have a temperature for another reason unrelated to COVID-19.”

Following a risk assessment, if temperature testing is being considered as a risk control measure, businesses should consult with workers and provide information about the process.

COVID-19 related questioning of workers and visitors (including by way of telephone, apps and non-face to face contact) prior to access to a workplace can also be utilised by businesses as part of their risk control measures. The privacy of that information, its collection, storage and use must be managed.

 
What are the requirements regarding travel – either to or from the office or business travel?

Guidance from State governments in Australia suggests that employees returning to work should avoid the use of public transport wherever possible. 

If an employee has no alternative but to use public transport then consideration should be given to whether staggering office hours so that the employee can avoid the busiest times is reasonably practicable. 

Travel within Australia is subject to certain border closures affecting particular States, and so employment related travel may not be undertaken at present where it involves crossing the border of a sequestered State.

Practical tips:

  • Consider methods of travel to the office;
  • Encourage use of virtual meetings to limit business travel;
  • Establish protocol for determining business travel.
 
How does the prudent employer decide which employees should return to the workplace?

In planning for return to the workplace, businesses should consult with workers and consider vulnerable workers. Other considerations include:

  • How access to the workplace will be managed and who will be responsible for its monitoring? 
  • How will social distancing measures be addressed in offices, working spaces, meeting rooms, walkways, lifts, tea rooms, kitchens, toilets, etc.?
  • How will tasks that challenge physical distancing be managed?
  • What kind of cleaning protocols will be used? Who will do the cleaning? If plant/equipment is shared, how will it be cleaned and by whom? What about high-touch items?
  • What kind of information, instruction and training will be provided to workers on managing the risk of exposure to COVID-19; protocols for workplace access, physical distancing, workplace cleaning, worker hygiene and health monitoring?
  • How to effectively consult and communicate prior to and during the return phase if there are different start/finish times, rotating teams and others working from home?
  • How to manage whether there is a need for refresher training on work tasks/equipment or information to people returning following stand-downs/absence from work (particularly where those persons may have been involved doing other work in the meantime and may need to be re-trained)?
  • How to support good mental health where there may be increased general anxiety connected with COVID-19 both due to work changes (e.g. changed work conditions) and change in personal circumstances?
 
What if an employee refuses to return to the workplace?

An employer can insist on compliance with a direction to an employee that is lawful and reasonable in connection with the employment. Where an employer has addressed the risks posed by COVID-19 and eliminated or minimised them so far as is reasonably practicable including by adopting measures consistent with the National COVID-19 Safe Workplace Principles and the SafeWork Australia recommendations then that may provide a basis for compelling an employee to comply with the employer’s direction to return to the workplace subject to specific vulnerabilities to which the employee may be subject. Such vulnerabilities may necessitate the adoption of special arrangements for that employee to address WHS obligations or the employer’s duties under disability discrimination laws.

Carrying out proper consultation should bring any special issues to the fore which can be addressed in the implementation of the employer’s return to the workplace plans. But where the employer is presented with a refusal to return to the workplace by an individual employee it is best that specific advice is sought before a reflexive response of disciplinary action or dismissal is undertaken.

 
What other considerations should the prudent employer is thinking about at this time?

Employers may find themselves with many more requests for flexible working arrangements made under the Fair Work Act. Such requests may legally be made by employees who have family responsibilities for children below school age, or who have a disability, or who are experiencing family or domestic violence or who care for a person experiencing such violence. The employer can only refuse such requests where there is a reasonable business basis for doing so.

Employers may also find that they are facing more grievances from employees in relation to directions to change the employee’s hours and circumstances of work made under the Fair Work Act in connection with the Commonwealth Government’s “JobKeeper” scheme. 

The merits of such applications and grievances will fall to be determined by principles that do not necessarily align with those that would have applied to before the advent of the pandemic. Obtaining specific advice at an early stage is recommended.

 
Contact

Jason Noakes
Partner
jason.noakes@nortonrosefulbright.com
+61 2 9330 8021