New South Wales sets out regulatory intent during COVID-19

SafeWork New South Wales (SafeWork NSW) has outlined the enforcement approach that it will take to ensure compliance with the Work Health and Safety Act 2011 and the Work Health and Safety Regulation 2017, in response to the coronavirus (COVID-19) pandemic. In its statement, SafeWork NSW acknowledged the exceptional set of circumstances created by the COVID-19 pandemic, and its impacts on persons conducting a business or undertaking (PCBUs), workers, officers and other persons with duties under the work health and safety (WHS) legislation.

Unprecedented pressures

The NSW WHS legislation is a risk-based framework that considers what is ‘reasonably practicable’. SafeWork NSW has acknowledged that exceptional circumstances require flexibility, and this is reflected in its approach to WHS regulation, which involves a graduated approach to compliance and enforcement in line with the ‘National Compliance and Enforcement Policy’. The regulator recognises that the ‘Public Health (COVID-19) Gatherings Order 2020’ may impact NSW workplaces; SafeWork NSW will consider the unprecedented pressures on industry and apply a common sense and practical approach to its interactions with workplaces. Advisory, compliance and enforcement activity will continue, including a focus on matters that pose significant risk to workplaces and worker safety. SafeWork NSW will carry out actions that are proportionate, with a focus on what is reasonably practicable in the circumstances.

In its statement, SafeWork NSW said it will apply a reasonable and proportionate response to compliance, including with a business’s ability to meet its WHS duties due to constraints associated with the pandemic. These may include duties such as participating in face-to-face training and practical hands-on training demonstrations, maintaining records in prescribed formats, securing access to health surveillance clinics, testing emergency plans or compliance with other regulatory requirements. SafeWork NSW also said that it aims to take a supportive and educative approach to compliance with these requirements, provided duty holders make genuine attempts to comply with requirements, but are non-compliant due to factors outside their direct control. However, SafeWork NSW has also said that it reserves the right to vary its approach as appropriate to the circumstances, particularly in cases of significant safety risk to workers or the community.

Manage the risk

The regulator advises businesses to take action to prepare and manage the risk of exposure to COVID-19 for workers and others at their workplace, so far as is reasonably practicable. All businesses should review their exposure and infection control policies and procedures; promote social distancing, good hand and respiratory hygiene; and increase cleaning of common areas within the work environment. Businesses are also encouraged to develop and implement safe systems of work (in consultation with workers and/or their health and safety representatives [HSRs]) that include directions and advice provided by health authorities. Businesses are being advised that they must also continue to comply with statutory requirements, including notifying SafeWork NSW of any work-related fatality, serious injury or confirmed or uncontrolled exposure to a serious illness, including COVID-19. 

HSRs should work collaboratively with businesses to consult on WHS risks and controls, and while HSRs are not entitled to personal medical information of other workers without their consent, they are entitled to monitor the rate of exposure and infection of illness in the workplace. HSRs must also work with the business to implement reasonable and practicable controls. Under WHS legislation, workers are obligated to protect themselves and others; if they believe they are at risk of COVID-19, workers must raise their concerns with their manager or WHS representative as soon as possible. Those NSW workers unsatisfied with the response they receive are advised to contact SafeWork NSW on 13 10 50 or via the Speak up platform.

National response

Safe Work Australia (SWA) has released a ‘National statement of regulatory intent — COVID-19’. This statement applies to all WHS regulators — including NSW — in jurisdictions that have implemented the model WHS laws, as well as in Western Australia. SWA’s national statement sets out the enforcement approach that the WHS regulators (excluding Victoria) will take to ensure compliance throughout the COVID-19 pandemic.

The COVID-19 situation in Australia is changing rapidly. For the latest information, visit www.australia.gov.au.

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