Covid spreading in your workplace may be prosecuted by WorkSafe

WorkSafe Victoria spent much of 2021 and early 2022 investigating potential charges against operators of businesses in which COVID-19 was spread by staff during the 2020 outbreak. Now, serious prosecutions are beginning, and so employers need to be aware: aim for the highest OH&S[1] standards, or become a target of prosecution by WorkSafe.

In mid-2022, a diverse range of businesses including hotels and security firms were charged with COVID-19 related offences and even Victoria’s Department of Health was handed charges alleging breaches of the OHS Act[2], in relation to COVID-19 spreading through the state’s quarantine hotels.

Under particularly close scrutiny are safety standards in aged care facilities – which is understandable considering the vulnerability of the elderly to COVID-19.

Two of the first aged care prosecutions – announced in July 2022 – were Victoria facilities St Basils Homes for the Aged and Epping Gardens, which is operated by Heritage Care.

Why does WorkSafe allege that the spread of a virus was the fault of the workplace?

The charges in the aged care prosecutions relate to alleged failures to enforce PPE requirements and that subsequent infections – plus dozens of deaths – occurred because the workplaces were expected to follow the COVID-prevention guidelines published in March 2020 by Communicable Diseases Network Australia. Both aged care facilities face a fine of 9,000 penalty points which equates to $1.49 million.

In a case which entered the courts in August 2022, WorkSafe alleges that in July 2020, after being notified by a worker that they 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 that staff were competent in using PPE;
• Tell staff when PPE should be used; and
• Supervise the use of PPE.

In total, 45 residents subsequently died at St Basil’s and another 94 staff subsequently tested positive for COVID-19.

St Basil’s was charged with:

• Breaching sections 21(1) and 21(2)(a) of the OHS Act, in that it failed to provide and maintain for its employees, as far as reasonably practicable, a working environment that was safe and without risks to health.
• Failing to enable workers to perform their work safely and without risks to health by failing to provide necessary information and instruction, and supervision.

In a very similar situation announced by the Fair Work Ombudsman (FWO) one week later, Epping Gardens Aged Care also in Victoria, saw 34 residents die from COVID-19 related complications between 13 March 2020 and 20 July 2020 – for which WorkSafe has issued the same three OHS breach charges as the St Basil’s facility. The specific issue once again was when the outbreak commenced, WorkSafe says Heritage Care failed to get staff to use PPE correctly and routinely – leading to injury and death.

Getting the correct certification keeps everyone safe – and should minimise the chances of WorkSafe penalties

These cases serve as a timely reminder that failures in health and safety systems in the workplace can not only cause serious injuries to workers and service users, but organisations can also receive large fines that can bring a business to its knees.

Ensuring you have the correct international standards quality controls in place and managing them through the process from design to production and delivery, are a fundamental component of complying with legal obligations and keeping your people safe at work.

QMS Certification Services specialises in certifying businesses in ISO standards which will set up systems to keep staff and customers safe.

The International Quality Standards you should consider seeking accreditation for are:

• ISO 9001 – Operational quality management.
• ISO 45001 – The international standard for occupational health and safety.

Get in touch with QMS Certification Services today if you’d like to work towards ISO standards and audit training.

[1] Note ‘OHS’ is referred to as ‘Workplace Health and Safety’ (WHS) in States and Territories outside Victoria

[2] The Occupational Health and Safety Act 2004 (VIC)