WHS duties the same even with COVID-19 restrictions easing

Edge Legal

06 April 2022

A lack of public health orders is not an excuse for employers to drop the ball on keeping workplaces COVID-safe – that’s the latest message from the ACTU and a view shared by Safe Work Australia (SWA), demonstrating that unions and regulatory bodies are mostly aligned on the future of WHS relating to COVID-19 as we emerge from the pandemic.

We previously discussed that even with the increasing prevalence of Rapid Antigen Testing (RATs), there remains no ‘silver bullet’ for combating COVID-19 risks, but that:

  1. social distancing and ventilation;

  2. encouraging working from home;

  3. shift staggering;

  4. avoiding communal spaces; and

  5. ensuring workers do not attend work when unwell

are all required to be considered and implemented when reasonably practicable.

The ACTU says increased ventilation including open windows and doors whenever possible, masks, density limits, and regular, free [infection] testing are all measures that may be appropriate regardless of whether they are mandated and must be used to keep workers safe.

Secretary Sally McManus said:

  1. masks;

  2. RATs;

  3. density limits;

  4. working from home; and

  5. other reasonably practicable control measures

should all be considered by employers and put in place where appropriate.

We agree with the ACTUs point that that having these control measures in place will limit the impact on employers by minimising the number of employees on sick leave.  This is something we regularly hear from our own clients.

While there was no mention of mandatory vaccination, our advice to clients remains that a direction to vaccinate is likely to be lawful and reasonable where an employer’s risk assessment demonstrates the other control measures are insufficient to mitigate the risk of COVID-19 in the workplace.  The superiority of vaccination as a control measure was also affirmed by the Fair Work Commission in its recent decisions involving BHP.

Continue to consider and take specific advice as to the most appropriate control measures for your workplace, including whether a mandatory vaccination policy is the right path forward.

Edge Legal
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