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Workplace Safety and Consumer Affairs – Covid Risk

Cassy O'Connor MP  -  Monday, 6 June 2022

Tags: WorkSafe, COVID-19

Ms O'CONNOR - I want to come back to the workplace health and safety act and the management of COVID risk in the workplace.

The act is pretty unambiguous in sections 17 and 19, about an employer's responsibility to eliminate risks to health and safety as far as is reasonably practicable. If it is not reasonably practicable to eliminate risks, to minimise those risks. Then section 19 talks about the duty of care. So the employer must provide a safe workplace.

I am curious as to whether you think the conditions in the act are being met. Independent experts like Professor Nancy Baxter from the Melbourne School of Population & Global Health and Professor Raina Macintyre from the Kirby Institute have advised the wearing of masks indoors, as have the independent group of 400 medical experts OzSAGE group of scientists. Yet, in workplaces across Tasmania, masks are rarely worn. I note that last week in this place, for example, there were four members of the Hansard staff who were out due to COVID-19.

Are you comfortable that employers in Tasmania are doing everything they can to keep people safe in their workplace from COVID-19 infection?

Ms ARCHER - It's very well known that the Government, certainly in terms of our workplaces and we are a large employer in this state, take our advice from Public Health. We have done all along and continue to do so. In relation to compliance with our workplace, health and safety, then WorkSafe Tasmania is responsible for that responsibility. I can certainly see what Ms Pearce says about that in terms of the sections that you've quoted. As I said, as a government, we take advice from Public Health and at the moment, the wearing of masks is optional but we certainly note that there are people in high risk settings and we still urge people if they feel unsafe in certain settings to still wear a mask.

We are still wearing masks in parliament, when we are not speaking.

Ms O'CONNOR - Partly because the Greens kicked up such a stink.

Ms O'BYRNE - I would have anyway.

Ms ARCHER - No. We were already wearing them and hadn't stopped wearing them. So I don't think that is a true statement.

Ms O'CONNOR - There were people in the Chamber who were unmasked.

Ms ARCHER - I am not sure if Ms Pearce wants to add to that in any way in terms of compliance with the work health and safety act.

Ms O'CONNOR - Just on the question -

Ms ARCHER - They are the independent regulator and I can't speak for them.

Ms O'CONNOR - I understand that and that's good. On the question, for example, in Victoria there are employees who are taking their employer to court for not providing a safe workplace because they were infected with COVID-19 in the workplace and there were outbreaks in workplaces where people were unmasked, there was inadequate ventilation and inadequate air filtration. Do you agree, an employer's obligation to minimise risks should include advising workers to wear masks indoors, and should include investing in better ventilation and filtration to keep people safe from infection when they go to work?

Ms ARCHER - At the moment, I think we have largely left it up to an employer in terms of what their risk setting is.

Ms O'CONNOR - Exactly. Then aren't they liable then to being sued?

CHAIR - Ms O'Connor, you have asked the question.

Ms ARCHER - What you're asking me for is really an opinion and I need to revert to the independent regulator. So I would like Ms Pearce to have the opportunity to address that because she administers the act.

Ms PEARCE - Thank you, minister. So from a work health and safety perspective, the focus is on the mitigation of risk. In terms of an inspector, when they are inspecting a workplace to determine whether or not that risk has been mitigated so far as reasonably practicable, they will rely on expert advice as to what are the appropriate mitigation measures. We rely on the advice from the Director of Public Health in terms of what is an appropriate level of mitigation strategy to put in place.

Where there is a mandate through a Public Health direction, then there would be a non-compliance if that was not occurring. However, in other workplaces it's a matter of reviewing how the business has gone about identifying their level of risk. Some risk settings may well have a higher need for mask wearing. For example, if it is not possible to maintain 1.5 metre distancing, which is the current recommendation from Public Health. However, in other settings where they are able to maintain those sorts of settings then it may not necessarily be needed to have mask wearing in place.

We have to remember that the suite of COVID mitigation measures are a package of measures and they need to be reviewed as the risk changes.

Ms ARCHER - We have a safe workplaces framework, don't we?

Ms PEARCE - We do.

Ms ARCHER - Also safe workplace guidelines available through WorkSafe Tasmania to assist employers in that determination.

Ms O'CONNOR - If you were one of the Hansard staff who was infected, arguably, probably, in the workplace you might ask some questions about that workplace framework? Given that Public Health in Tasmania still hasn't confirmed that COVID-19 is transmitted in an airborne manner, isn't it on the regulator or you as minister to understand what the most up to-date mitigations are in order to protect people from contracting COVID-19 in the workplace.

Ms ARCHER - I'm not a medical expert. This is why we take our advice from Public Health.

Ms O'CONNOR - Who still haven't confirmed COVID-19 is airborne.

Ms ARCHER - I'll take that as a statement.

Ms O'CONNOR - Minister, how many infringement notices, improvement notices and prohibition notices has WorkSafe issued in respect of COVID-19 and what proportion of overall notices is this in this year.

Ms ARCHER - There were three different types -

Ms O'CONNOR - Infringement, improvement and prohibition.

Ms ARCHER - I will see if Ms Pearce has that on hand, otherwise we can always do it on notice.

Ms PEARCE - Is that in this financial year?

Ms O'CONNOR - Yes.

Ms PEARCE - In this financial year to 31 March, I can give it to the secretary.

Ms ARCHER - You need to say what date it is to because we are in an incomplete financial year.

Ms PEARCE - To 31 March there have been 24 improvement notices issued and there have been no prohibition notices and no infringement notices issued.

Ms O'CONNOR - I want to get some details of the $750 000 you talked about earlier, which is being provided to WorkSafe to respond to COVID 19 issues.

Is this money for the appointment of additional inspectors and are all COVID 19 issues inspected by staff employed under this program, or do they supplement the work of other WorkSafe inspectors?

Ms ARCHER - It is the continuation of the inspectors that were funded in the last financial year. It is the continuation of those six inspectors.

Ms PEARCE - In the last financial year, we said we were running a dedicated COVID 19 unit where we had inspectors only undertaking COVID 19 focused COVID 19 inspections. However, in addition to that, inspectors when they were attending sites or other premises, would also look at COVID 19 as a part of those normal inspections.

Ms O'CONNOR - Can I ask when an infringement notice, or improvement notice, or even a prohibition notice is issued, what advice does WorkSafe give to Tasmania? Not to follow the Public Health advice, but what advice does WorkSafe give to Tasmanian employers about how to minimise risk of COVID 19 infection in the workplace?

Ms PEARCE - In relation to infringement notices and prohibition notices, there have only been two of those. One of each issued through the length of COVID 19 pandemic. Sorry, only one infringement notice. An infringement notice can only be issued for very specific offences under the act, and there has been very few occasions where we have actually seen that. Normally, an infringement notice will be issued because there has been a failure to comply with the directions that were given in the improvement notice.

Ms O'CONNOR - I am interested in what is in the improvement notices?

Ms PEARCE - The improvement notices will identify that there has been a contravention that is happening, or, and is likely to continue. Within that, it will depend upon what the inspector has seen to form the reasonable belief there has been a contravention.

In the majority of cases, the direction that will be given is one for the business to review its COVID 19 safety systems, that it has got them in place. To review the risks, they have. The mitigation measures that they have put into place, and to improve those mitigation measures, based upon the advice the inspector would have given when they have visited the site. It may be in relation to masks, it may be in relation to ventilation, it may be in relation to a multitude of different practices.

Ms O'CONNOR - Advice is given to employers about what measures can be taken to minimise the risk of transmission in the workplace in a manner that satisfies the act.

Ms PEARCE - We give direction to review the system of work. We will give advice on what some of the things are that the business could consider, but it is for the business to assess their risks and determine and make their own decisions about which measures to implement.

Ms O'CONNOR - Thank you, with the greatest of respect, I think that is leaving employers hung out to dry and potentially, facing legal action under the Workplace Health and Safety Act, not providing a safe workplace to their employees.

Is there any advice being sought or concern being raised about potential civil action against employers who have failed to provide a COVID 19 safe working environment? I am sure there are plenty.

Ms ARCHER - I have not had that issue arise, but, certainly, if I felt the need to seek advice on that, I would. But, I keep reverting back to the fact the Government takes its advice on these matters from public health,

Ms O'CONNOR - Which does not even encourage mask wearing.

Ms ARCHER - and obviously, in relation to the implementation of the WorkPlace Health and Safety Act, it is WorkSafe Tasmania which does that work and I am very careful as the Independent Regulator, I do not step into that realm of works independent of Government.

But certainly, in relation to the issue you raised, any civil action, I am not aware of that being an issue at all.

Ms O'CONNOR - It is happening in other states.

Ms ARCHER - It is not happening here.

Ms PEARCE - Minister, we have had no indications of that in any way.

CHAIR - Before you ask your question, we might have a comfort break at 4pm, we will have to make that time up at the end of this output.