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Workplace Safety and Consumer Affairs – Covid

Cassy O'Connor MP  -  Monday, 5 June 2023

Tags: COVID-19

Ms O'CONNOR - Attorney-General, going now to workplace safety in relation to COVID transmission. As you'd be aware, employers have a legal responsibility under the Work Health and Safety Act 2012 to take steps to minimise, so far as is reasonably practicable, the spread of COVID 19 and other illnesses in the workplace.

As you know, Attorney-General, COVID is a potentially disabling and deadly disease that is a workplace health and safety issue. What's your advice on what 'reasonably practicable' means in terms of an employer's obligation to keep the air people breathe in their workplace as clean as possible?

Ms ARCHER - Under the Workplace Health and Safety Act? I will need to go to Ms Pearce on that given she administers that act, and rather independently.

Ms O'CONNOR - You administer it.

Ms ARCHER - Yes, but I'm also very conscious of WorkSafe's role and not impinging on that in terms of it being operational, reasonably practicable and how that's interpreted.

Ms O'CONNOR - With respect, we've got some guidance on how it's interpreted, which is very loosely, and we've got a matter that we took to WorkSafe in relation to this workplace. We've also written to WorkSafe before about it.

Ms ARCHER - You mean this workplace as in parliament?

Ms O'CONNOR - No, I’m talking about as a broad workplace health and safety issue, where there's been no emphasis from governments on how employers can keep the air as clear of pathogens as possible. I'm keen to understand what 'reasonably practicable' looks like, in terms of the act, because it doesn't seem to me there's much happening to keep people safe from COVID 19 in their workplaces at all.

Ms ARCHER - I think it reverts back to what the advice of SafeWork Australia was at the time.

Ms PEARCE - Just to clarify, you're talking in relation to ventilation specifically or more broadly in relation to COVID 19 safety?

Ms O'CONNOR - No. The question is what, under the act, would WorkSafe consider to be reasonably practicable steps for an employer to take to keep their employees safe from airborne transmission of a lethal pathogen?

Ms PEARCE - Thank you for the clarification. The response is going to be, it depends upon the workplace. Each workplace needs to do a risk assessment, which takes into consideration the specific risks that apply within their workplace. In some workplaces, the risks are going to be higher than in others. A workplace which is fully outdoors is going to have a different risk to a workplace which is an indoor workplace. As with all work health and safety management, it starts with the risk assessment that should be undertaken. Then, depending upon the risks that are identified on the ways in which COVID 19 may be transmitted within that workplace, decisions need to be taken in terms of what are the best controls.

As to what is considered reasonably practicable, the usual thing is that we go to what is the expert guidance in that space. From that point of view, we would rely on the guidance that has been published by Public Health on what are the control measures that could be put in place. Employers, in consultation with their workers, should be identifying which are the appropriate controls, be they in relation to distancing, density, sanitisation, ventilation, vaccination, all of those -

Ms O'CONNOR - Filtration. You missed filtration.

Ms PEARCE - Yes, all of those different controls are options that need to be considered but it has to be based upon the risks in that workplace. There's no one size fits all.

Ms O'CONNOR - Thank you for that, Ms Pearce. That then requires every workplace to undertake a risk assessment, doesn't it? Is it your understanding every workplace has, because this one hasn't?

Ms PEARCE - I could not say that every workplace has because we haven't been into every workplace. With 38 000 businesses and those having multiple workplaces, that is not something WorkSafe can do in any sense. Having said that, WorkSafe has conducted over 8000 workplace inspections over the course of the pandemic, and continues to do so.

Ms O'CONNOR - Thank you. Just to be clear, unfortunately, for the purposes of the act, unless an employer has undertaken a risk assessment of the workplace, they're not going to know what kind of mitigations are appropriate for that workplace. It's unarguable that a very significant number of Tasmanian workplaces do not have a risk assessment in place and do not have COVID 19 safety measures in place, isn't it?

Ms PEARCE - A risk assessment does not necessarily have to be documented. There are times that we will go and inspect workplaces and they do not have a documented risk assessment, yet they have controls in place which demonstrate that they have taken some form of consideration of the risk. The simple fact that a workplace has some sanitiser available -

Ms O'Connor - Which does nothing to reduce COVID 19 spread, to be clear.

Ms PEARCE - and they have masks available. They have taken some control and there has been a risk assessment done, be it documented or undocumented. In fact, there have been cases at law which have found that risk assessments do not need to be documented in order to demonstrate that a risk assessment has actually been conducted in some form.

Ms O'CONNOR - Okay. Minister, are you confident that Tasmanian employers are taking seriously their responsibilities under the Work Health and Safety Act to keep staff safe? I can convey to you any number of examples of workplaces that are COVID 19 free zones where people are getting infected.

Ms ARCHER - At the height of COVID 19, employers were far more heightened to doing risk assessments and I don't think any of us would walk into a business without there being sanitiser.

Ms O'CONNOR - Everyone does it now. To be clear, sanitiser does nothing to reduce COVID-19 transmission.

Ms ARCHER - I am using an example of something that we have all learned from.

Ms O'CONNOR - Why don't you use an actual, practical example like masks, ventilators and filters?

Ms ARCHER - The issue here is that we have all become more complacent.

Ms O'CONNOR - No, don't count the Greens in that.

Ms ARCHER - Not the Greens, okay, I will exclude the Greens. I know what you are trying to do here.

Ms O'CONNOR - I am trying to make sure that people are safe in their workplaces and to encourage you to take an interest in that.

Ms ARCHER - It is good to raise awareness but unless Public Health advise, I don't see us moving back to the measures that we had in place back in the height of the pandemic.

Ms O'CONNOR - Okay, a final question on this. The Public Health guidance, the advice to employers, is to stay home and get tested if you have COVID-19, cold or flu symptoms. Are you aware that this workplace, for example, only says that staff in here should stay home if they have tested positive for COVID-19, which means that there are people coming into work symptomatic. Do you think that is safe?

Ms ARCHER - I am not a doctor. I know though, when I didn't feel well, I went home.

Ms O'CONNOR - Yes, but you are a responsible person.

Ms ARCHER - That is what it does come down to, is people taking responsibility for themselves.

Ms O'CONNOR - Yes, we used to have a thing called public health where there was a broad application to protecting the health of the community. Dr Veitch seems to have been put in a cupboard somewhere. But anyway, thanks.