Incident notification during COVID-19: What employers need to know across Australia

8 minute read  04.08.2020 Harriet Eager, Deanna McMaster, Cassandra Collier

Read more on the important change to OHS laws in Victoria, in connection with COVID-19. We cover the position across Australia.

There has been an important change to OHS laws in Victoria, in connection with notifying the safety regulator of COVID-19. The position in the other states and territories has not changed – it remains the case that in some circumstances, COVID-19 will need to be reported to a safety regulator.

Strictly speaking, in the harmonised jurisdictions (i.e. other than Victoria and Western Australia) a case of COVID-19 must arise out of your business or have a connection with the workplace to be required to be reported to a safety regulator. How an employer has dealt with the situation will not be an issue provided the employer has taken reasonably practicable steps to manage the risks posed by COVID-19 to physical and psychological health (including following Government directions and advice).

A case of COVID-19 that does arise from your workplace generally does not need to be reported unless the person who is diagnosed with COVID-19 receives immediate treatment as an in-patient in a hospital (or otherwise meets the definition of a 'serious illness') or the person contracts COVID-19 from performing their work (for example, health care workers).

Despite the technicalities in relation to what is required to be reported to a safety regulator, some employers are erring on the side of reporting to a safety regulator any case of COVID-19 that arises among its staff or has some connection to their workplace. Practically, this can be useful as often the regulator has an expectation of being advised – see the extracts from regulator websites below.

We summarise the position across Australia below and will continue to monitor the situation.

Victoria

On 28 July 2020, the Occupational Health and Safety (COVID-19 Incident Notification) Regulations 2020 (OHS COVID-19 Regulations) were made.

Previously, employers with management and control of workplaces were not required to notify WorkSafe of an incident involving an infectious disease (including COVID-19) in the workplace, unless immediate inpatient treatment was required for a person or the infection caused a death.

This has now changed. The OHS COVID-19 Regulations extend the operation of Part 5 of the Occupational Health and Safety Act 2004 (OHS Act) to require a notification to WorkSafe if:

  • an employer becomes aware that an employee or independent contractor engaged by the employer, and any employees of the independent contractor, has received a confirmed diagnosis of COVID-19, and has attended the workplace within the infectious period (being 14 days prior to receiving the confirmed diagnosis of COVID-19 and until clearance from isolation has been received); or
  • a self-employed person has received a confirmed diagnosis of COVID-19 and has attended the workplace within the infectious period (being 14 days prior to receiving the confirmed diagnosis of COVID-19 and until clearance from isolation has been received).

The penalty for the indictable offence of failing to notify WorkSafe of a notifiable incident, under section 38 of the OHS Act, is up to $39,652 (240 penalty units) for an individual or up to $198,264 (1200 penalty units) for a body corporate.

The OHS COVID-19 Regulations are temporary and will expire 12 months after their making.

What is the position in the other states?

New South Wales

There has been no legislative change to the NSW incident reporting regime since the start of COVID-19. In some circumstances, notification can be required. 

Section 38 of the Work Health and Safety Act 2011 (NSW) provides that a 'person conducting a business or undertaking' (PCBU) must ensure SafeWork NSW is notified immediately after the PCBU becomes aware that a notifiable incident arising out of its business or undertaking has occurred.

A notifiable incident includes the death of a person or a serious illness of a person.

A serious illness includes:

  • an illness where the person is required to have immediate treatment as an in-patient in a hospital; or
  • any infection to which the carrying out of work is a significant contributing factor, which includes but is not limited to any infection that is reliably attributable to carrying out work that involves providing treatment or care to a person or contact with human blood or body substances.

SafeWork NSW’s website, as at today’s date, states:

‘Businesses (and other PCBUs) is [sic] required to notify us of serious illnesses (including COVID-19) arising out of work’

The maximum penalty for failing to notify SafeWork NSW of a reportable incident is:

  • 115 penalty units for an individual ($12,650); or
  • 575 penalty units for a body corporate ($63,250).

Queensland

The position is the same as NSW.

WHSQ's website, as at today's date, states:

'If there is a confirmed or probable case of COVID-19 at your workplace, Queensland Health will be notified by the medical professional who confirms the diagnosis. A person conducting a business or undertaking (PCBU) must notify Workplace Health and Safety Queensland (WHSQ) of a confirmed or probable case of COVID-19 as diagnosed by a medical practitioner and arising out of the conduct of the business or undertaking:

  • that requires the person to have immediate treatment as an in-patient in a hospital; or
  • to which the carrying out of work is a significant contributing factor, including any infection that is reliably attributable to carrying out work that involves providing treatment or care to a person, or that involves contact with human blood or bodily substances.'

The maximum penalty for failing to notify WSHQ of a reportable incident is:

  • $13,345 for an individual; and
  • $66,725 for a company.

Australian Capital Territory

The position is the same as NSW.

No specific guidance has been provided by WorkSafe ACT.

The maximum penalty for failing to notify WorkSafe ACT of a reportable incident is:

  • $10,000 for an individual; or
  • $50,000 for a body corporate.

South Australia

The position is the same as NSW.

SafeWork SA's website, as at today's date, states:

'You only need to notify us of a case of COVID-19 if it can be reliably attributed to a workplace exposure; and either:

  • the person is required to have treatment as an in-patient in hospital; or
  • death'

The maximum penalty for failing to notify SafeWork SA is:

  • $10,000 for an individual; or
  • $50,000 for a body corporate.

Tasmania

The position is the same as NSW.

WorkSafe Tasmania's website, as at today's date, repeats the legislative requirement, and confirms that:

'Notification is required regardless of whether the Department of Health/Public Health Services is already aware of the case '

The maximum penalty for failing to notify WorkSafe Tasmania is:

  • $10,000 for an individual; or
  • $50,000 for a body corporate.

Northern Territory

The position is the same as NSW.

No specific guidance has been provided by WorkSafe ACT.

The maximum penalty for failing to notify NT WorkSafe is:

  • $10,000 for an individual; or
  • $50,000 for a body corporate.

Western Australia

There has been no legislative change to the WA incident reporting regime since the start of COVID-19. In some circumstances, notification of infectious diseases is required.

Section 23I of the Occupational Safety and Health Act 1984 (WA) provides that an employer or self-employed person must notify WorkSafe WA when, at a workplace or a residential premises provided by the employer, an employee is affected by a disease that results in the death of the employee or is of a kind that is prescribed.

Regulation 2.5(1) of the Occupational Safety and Health Regulations 1996 (WA) (WA Regulations) prescribes the kinds of diseases that must be notified to WorkSafe WA and include diseases such as tuberculosis and HIV. The WA Regulations have not been amended to include COVID-19.

This means an employer or self-employed person in WA would only be required to notify WorkSafe WA if an employee contracted COVID-19 through work or while residing in employer provided accommodation and they died as a result.

No specific guidance has been provided by WorkSafe WA relating COVID-19 notification requirements.

The maximum penalty for failing to notify WorkSafe WA of a death arising from COVID-19 in the workplace is:

  • in the case of an individual:
    • for a first offence, to a fine of $100 000; and
    • for a subsequent offence, to a fine of $120 000; or
  • in the case of a body corporate:
    • for a first offence, to a fine of $450 000; and
    • for a subsequent offence, to a fine of $570 000.

Commonwealth

The position is the same as NSW.

Comcare, the WHS regulator for PCBUs governed by the Work Health and Safety Act 2011 (Cth), has published on its website, as at today's date, the following:

'Employers should notify Comcare of all confirmed COVID-19 cases that are work-related and arise from the business or undertaking of the employer (PCBU).

Notification allows us to consider and address risks to health and safety. We assess each notification and consider whether regulatory action is required on a case by case basis, and according to standard procedures.'

The maximum penalty for failing to notify Comcare is:

  • $10,000 for an individual; or
  • $50,000 for a body corporate.

As COVID-19 continues to impact on the workplace, we will keep you updated on developments and provide practice guidance. If you have any questions, please feel free to contact our team below.

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