Victorian employers may face fines of up to $198,264 if they fail to immediately notify WorkSafe Victoria of COVID-19 cases within their workforce in accordance with the new Occupational Health and Safety (COVID-19 Incident Notification) Regulations 2020 (Vic.) (the "Regulations").
Requirement to notify WorkSafe Victoria of workplace "incidents"
Pursuant to section 38 of the Occupational Health and Safety Act 2004 (Vic.) (the "Act"), an employer or self-employed person must not, without reasonable excuse, fail to notify the Victorian WorkCover Authority ("WorkSafe Victoria") immediately after becoming aware that an incident has occurred at a workplace under the management and control of the employer or a self-employed person.
Within 48 hours of being required to notify WorkSafe Victoria, the employer (or self-employed person) must also give WorkSafe Victoria a written record of the incident using the applicable WorkSafe Victoria form. This record must be maintained by the employer for a period of 5 years.
Further, when an employer is required to notify WorkSafe Victoria of an "incident", the employer must not (without reasonable excuse), disturb the incident site until an inspector arrives (or as directed by an inspector) unless such is necessary to protect the health and safety of a person or is essential to make the site safe or prevent a further occurrence of an incident.
An employer of self-employed person who fails to notify WorkSafe Victoria (or keep records/ preserve a site as noted above) is guilty of an offence and may face a penalty of up to $39,652 for an individual and $198,264 for a body corporate. In addition to these financial penalties an offence under these sections is an indictable offence.
These sections applies to "incidents" set out in section 37 of the Act or any other event or circumstance prescribed by the regulations.
The Regulations prescribe the event/circumstance in which a COVID-19 case within the workforce will constitute an "incident" and require an employer to immediately notify WorkSafe Victoria.
Pursuant to the Regulations, from 28 July 2020 a prescribed event/circumstance will occur when an employer becomes aware that an employee, an independent contractor or an employee of independent contract, has received a confirmed COVID-19 diagnosis and has attended the workplace within the infectious period. This provision also applies to a self-employed person who has received a confirmed COVID-19 diagnosis and has attended the workplace within the infectious period.
For the purpose of this Regulation, "infectious period" means that date, being 14 days prior to the onset of symptoms consistent with COVID-19 or a confirmed COVID-19 diagnosis (whichever comes first), until the date on which the person receives a clearance from isolation from the Department of Health and Human Services.
How to Immediately Notify WorkSafe Victoria of a COVID-19 Incident
If a COVID-19 incident occurs in your workplace, the WorkSafe Victoria website provides guidance on how your can immediately notify WorkSafe Victoria by phone or by completing a COVID-19 reporting form. It is important to remember that a written record of the incident must also be provided to WorkSafe Victoria within 48 hours in an approved form.
Additional information on reporting a COVID-19 incident is available at the WorkSafe Victoria website that can be accessed here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.