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We’ve been receiving a lot of questions from our clients over the past few weeks regarding work and business arrangements, as well as how they should be managing Work Health and Safety in the current environment.
 
On Thursday 26 March, SafeWork NSW released a statement setting out its enforcement approach going forward given the ongoing COVID-19 pandemic (see the statement here). SafeWork NSW have acknowledged that orders made by state and federal governments (i.e. the Public Health (COVID-19 Gatherings) Order 2020) may significantly impact a duty holder’s ability to comply with certain obligations under WHS legislation.

SafeWork NSW: “A reasonable and proportionate response”

While continuing to focus on advisory, compliance and enforcement activity, SafeWork NSW have considered the unprecedented pressure on industry and have adopted a “reasonable and proportionate response”, focusing on what is reasonably practicable in the current circumstances. This means leniency will be afforded to duty holders when attempting to fulfil WHS obligations, which may include:

  • participating in face-to-face training
  • maintaining records in prescribed formats
  • securing access to health surveillance clinics, or
  • complying with other regulatory requirements.

This does not give organisations the right to relax all safety rules and practices. SafeWork NSW have clearly stated that duty holders must still make genuine attempts to comply with WHS requirements and will only be afforded leniency where non-compliance is “due to factors outside their direct control”.
 
SafeWork NSW have emphasised that they will be still responding to matters involving serious incidents or fatalities during the COVID-19 pandemic. Companies are still required to report any notifiable incidents to SafeWork NSW.

Recommendations by SafeWork NSW to PCBUs

SafeWork NSW have recommended that, in light of the COVID-19 pandemic, persons conducting a business or undertaking (PCBUs) should:

  • review their exposures and infection control policies and procedures, including:
    • actively promoting social distancing
    • encouraging good hand hygiene, and
    • increasing the level of cleaning in common areas within the workplace 
  • develop and implement safe systems of work in consultation with workers (including Health and Safety Representatives (HSRs)) 
  • monitor the COVID-19 situation as it develops, and 
  • continue to notify SafeWork NSW of notifiable incidents (including confirmed or uncontrolled exposure to a serious illness, including COVID-19).  

In addition to the above, SafeWork NSW have encouraged HSRs to consult with other businesses on what control measures they are using to manage WHS risks.
 
Finally, SafeWork NSW pointed to the obligation on workers to take reasonable care to protect themselves and others. This includes notifying their manager or WHS representative immediately if they believe they are at risk of infection of COVID-19 and not attending the workplace.

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