Victoria's Work Health and Safety Regulator, WorkSafe, has charged St Basil's Home for the Aged (Victoria) (St Basil's) with multiple breaches of the work health and safety legislation following the outbreak of COVID-19 at the Melbourne facility in July and August 2020. This represents the first of a number of potential prosecutions relating to the failure to properly manage COVID-19 risks in aged care facilities, in the workplace. This confirms the concerns of many employers that safety regulators will take enforcement action in relation to the way COVID-19 outbreaks were managed over the course of the pandemic.
The WorkSafe prosecution relates to the outbreak of COVID-19 at St Basil's between July and August 2020. During the outbreak, 94 residents and 94 staff tested positive for COVID-19. Sadly, 45 residents died with COVID-19. St Basil's is also separately responding to a coronial inquest and class action proceedings arising out of the COVID-19 outbreak at the facility.
WorkSafe alleges that in July 2020, after becoming aware that a worker had tested positive for COVID-19, St Basil’s failed to:
- require workers to wear personal protective equipment (PPE);
- train workers how to safely don and doff PPE;
- verify workers could competently use PPE;
- advise workers when PPE must be used; and
- supervise the use of PPE.
In total, WorkSafe alleges nine breaches of the Occupational Health and Safety Act 2004 (Vic) (OHS Act), comprising:
- one breach of sections 21(1) and 21(2)(a) of the OHS Act, for an alleged failure to provide and maintain a working environment that was safe and without risks to health;
- two breaches of sections 21(1) and 21(2)(e) of the OHS Act, for an alleged failure to enable workers to perform their work safely by failing to provide necessary information, instruction and supervision;
- three breaches of section 23(1) of the OHS Act, for an alleged failure to ensure that persons other than its employees were not exposed to risks to their health or safety arising from conduct of its undertaking; and
- three breaches of section 26(1) of the OHS Act, in that St Basil's allegedly failed to ensure that its workplace and the means of entering and leaving it were safe and without risk to health.
Each breach carries a maximum pecuniary penalty of $1.49 million. It appears from WorkSafe's media release that WorkSafe is pursing penalties for each breach of the OHS Act, meaning that, if convicted, St Basil’s could face fines of up to $13.41 million. WorkSafe has brought charges against the approved provider, not individual directors. However some families of deceased residents are calling for individual prosecutions as well, which may be a recommendation arising from the coronial proceedings.
WorkSafe's investigation commenced while the outbreak at the facility was still unfolding and took approximately 23 months to progress to official charges. WorkSafe is expected to argue that St Basil's failed to implement infection control measures which complied with the National Guidelines for the Prevention, Control and Public Health Management of COVID-19 Outbreaks in Residential Care Facilities in Australia.
WorkSafe is currently investigating a number of workplaces for failure to properly mitigate COVID-19 related risks, including other aged care facilities. We anticipate that WorkSafe (and other safety regulators around Australia) will commence prosecutions against other workplaces in relation to COVID-19 related risks in the coming months.
This is a timely reminder for aged care providers to ensure that they have appropriate infection prevention and control procedures in place at their facilities, particularly as we head into the winter months. These measures are essential to not only ensuring that residents and workers are kept safe, but also avoiding the risk of regulatory action and the potential for significant pecuniary penalties. It also emphasises the importance of approaching infectious disease risks from both a clinical and workplace safety perspective, including by documenting comprehensive risk assessments and monitoring steps taken in relation to control measures. Although a range of COVID-19 public health measures have been lifted, the obligations under safety laws are separate and continue to apply. As a result, it is important that aged care providers remain vigilant, particularly given the risk of increased prevalence of COVID-19 and influenza in the community coming into winter and that appropriate steps are taking to maintain the safety of residents and workers at the workplace.
Although the WorkSafe prosecution against St Basil's relates to an outbreak which occurred in 2020, the risk remains that any COVID-19 outbreak, or given the heightened media attention, other outbreaks such as influenza, may lead to interventions from the relevant safety regulator (and other regulators of aged care services), if reasonable steps have not been taken to mitigate the risk of such outbreaks.
The matter is listed for a filing hearing at the Melbourne Magistrates' Court on 1 August 2022. We will continue to monitor how the prosecution unfolds and publish updates of significant developments. In the meantime, if you have any queries or concerns about the matters raised in this article, please do not hesitate to contact us.
