An update for Victorian employers from FIA Partner Kingston Reid.

From 28 July 2020 until 27 July 2021, an employer or self-employed person in Victoria who fails to notify the Victorian WorkCover Authority (WorkSafe) of certain confirmed COVID-19 cases will be guilty of a criminal offence.

Background

The Occupational Health and Safety Act 2004 (Vic) requires employers and self-employed persons to notify WorkSafe of certain “incidents” at a workplace under their management and control immediately after becoming aware that they have occurred. These are commonly referred to as notifiable incidents.

The Act identifies many types of notifiable incidents but also allows such incidents to be prescribed by regulations.

The Act also requires that sites where notifiable incidents occur not be disturbed until released by a WorkSafe inspector, other than in very limited circumstances.

What has changed?

On 28 July 2020 the Governor of Victoria made the Occupational Health and Safety (COVID-19 Incident Notification) Regulation 2020.

The Regulation deems a notifiable incident to have occurred if an employer becomes aware that:

• an employee;
• an independent contractor engaged by the employer; or
• an employee of the independent contractor engaged by the employer,

has received a confirmed COVID-19 diagnosis and attended the workplace within the infectious period.

The Regulation defines “confirmed COVID-19 diagnosis” as a positive result for a person who has undergone a diagnostic procedure for COVID-19.

The “infectious period” starts 14 days prior to the earlier of the onset of symptoms consistent with COVID-19 or a confirmed COVID-19 diagnosis, and ends when the person receives a clearance from isolation from the Department of Health and Human Services.

The Regulation also requires self-employed persons who have received a confirmed COVID-19 diagnosis and attended the workplace within the infectious period to notify WorkSafe of those matters.

What does this mean for employers and self-employed persons in Victoria?

For the next 12 months, an employer or self-employed person who becomes aware of a confirmed COVID-19 case of the kind captured by the Regulation will need to:

• notify WorkSafe immediately upon becoming aware of the case, by the fastest means possible;
• provide written notification to WorkSafe within 48 hours of first being required to notify WorkSafe, using the form published on WorkSafe’s website; and
• ensure that the workplace (or the part of it) that the person attended is not disturbed – other than for the purpose of protecting the health or safety of a person or taking essential action to make the site safe or to prevent a further occurrence of an incident – until a WorkSafe inspector arrives at the site or such other time as a WorkSafe inspector directs.

Failure to do any of these things could result in the employer or self-employed person being charged and found guilty of criminal offences, and liable to a maximum fine of $198,264 (for a body corporate) or $39,652 (for an individual) per offence.

If you are in any doubt as to whether a confirmed COVID-19 case is notifiable to WorkSafe, or as to the steps that you should take at the relevant worksite after becoming aware of a notifiable COVID-19 case, contact us at Kingston Reid to discuss.

Dominic Fleeton
Partner
+61 3 9958 9616
dominic.fleeton@kingstonreid.com

John Makris
Partner
+61 2 9169 8407
john.makris@kingstonreid.com