September 20, 2020

Volume X, Number 264

September 18, 2020

Subscribe to Latest Legal News and Analysis

COVID-19: Victorian Government Draws Upon the 'Big Stick' On COVID-19 Notification

Victoria (Australia) has introduced the Occupational Health and Safety (COVID-19 Incident Notification) Regulations 2020 (Notification Regulation) requiring an employer to notify WorkSafe Victoria immediately of the following circumstances:

The employer is aware:

  • an employee; 

  • an independent contractor; or

  • an employee of an independent contractor; 

has a confirmed diagnosis of COVID-19 and attended the employer's workplace during the 'infectious period'. 

The 'infectious period' is:

  • 14 days prior to the onset of symptoms consistent with COVID-19; or

  • a confirmed COVID-19 diagnosis (whichever comes first), and

  • until the date on which the person receives a clearance from isolation from the State Department of Health and Human Services.

Additionally, the same notification requirement applies to a self-employed person who attends the workplace during the infectious period. The Notification Regulation commenced on 28 July 2020 and will remain in force for 12 months.  

The Notification Regulation goes beyond the previous position to report a case of COVID-19 which could be identified as having occurred in the workplace. The Notification Regulation is clearly a more proactive measure to deal with the 'risk' to health and safety from COVID-19, rather than the manifestation of illness or death and is mirrored with the objects of the legislation. Further it does not require the Regulator to identify the actual source of the risk which could be a different workplace to the employer or a residential premises.  

The maximum penalty for non-compliance with the Notification Regulation for a body corporate is 1,200 penalty units, being AU$198,264, and for an individual 240 penalty units, being AU$39,652. 

Employers need to be proactive and adopt a systematic approach to the management of the risk to COVID-19. The Notification Regulation requires an employer to take reasonably practicable measures to ensure processes and procedures within its safety management system will achieve compliance in the event notification is necessary. The measures to be implemented will need to suit the size of the business and its undertaking to avoid being unnecessarily burdensome and ineffective.

Employers should take steps to:

  • Communicate the requirements of the Notification Regulation to employees.

  • Review current processes and procedures for health monitoring and condition of employees to ensure they incorporate COVID-19 symptoms.

  • Review current protocols and procedures for identifying non-employees' attendance at the workplace and maintain accurate records of this.

  • Undertake refresher information, instruction and training for employees on recognising symptoms, keeping up good hygiene practices, maintaining social distancing protocols, seeking immediate medical attention including testing if starting to feel unwell and notifying the employer of the circumstances.

  • Monitor the effectiveness of the measures and protocols implemented for compliance with the Notification Regulation. 

Copyright 2020 K & L GatesNational Law Review, Volume X, Number 216


About this Author

Paul Hardman, KL Gates, Workplace Safety Investigations Lawyer, Labor Disputes Attorney

Mr. Hardman is a partner in the Labour Employment and Workplace Safety practice in the Brisbane office. He provides a wide range of advice and services to clients regarding employment, safety, investigations and disputes relevant to the workplace.

He is an experienced advocate and has appeared extensively in both State and Federal courts and tribunals in employment, safety and other contentious matters. He has experience across a broad range of industries including construction, water, manufacturing, agricultural, petroleum, gas and mining....

 John Rodney Labor, Employment and Workplace Safety Attorney K & L Gates Sydney, Australia
Special Counsel

Mr. Rodney has extensive experience in employment and work health and safety law and commercial litigation. He has been involved in a number of significant work health and safety prosecutions and has extensive experience and exposure within the coal mining, metalliferous and extractive industries and underground construction industry. Mr. Rodney has gained significant experience through his involvement in numerous investigations by the regulatory authorities, inquiries and coronial inquests.

He is one of the few lawyers who has acted as an external prosecutor for the WorkCover Authority and was seconded from private practice to the WorkCover Authority as principal solicitor. Mr. Rodney has appeared in both state and federal jurisdictions in employment matters. Through his coal industry service and in particular with the Coal Industry Tribunal and Australian Industrial Relations Commission (Fair Work Australia), Mr. Rodney was uniquely placed to advise on industrial matters to government, and become a trusted advisor to industry stakeholders. His extensive experience and knowledge allows him to not only deal with legal issues but also provide advice which offers practical solutions for his clients.

Primary Practice

  • Labor, Employment and Workplace Safety

Jamie Robinson Labor and Employment Attorney K&L Gates
Special Counsel

Jamie Robinson is an experienced industrial relations, employment and workplace safety lawyer based in our Brisbane office.

His practice focuses on achieving the best commercial legal solutions to employment, industrial relations, workplace behaviour, work health and safety and compliance challenges for clients. This incorporates a substantial history of providing compliance training to clients in his practice areas.

Jamie has worked throughout Australia and has a strong focus on providing front-end employment...

 Michaela Moloney, Partner, Melbourne

Ms. Moloney has worked for a wide cross section of clients including employers in the public sector, health, education, retail, energy and manufacturing industries and has significant experience in all aspects of employment, industrial and discrimination law. She acts on a broad range of matters for employers including drafting and interpreting employment agreements and policies, managing employee issues arising out of sale of business and outsourcing transactions, assisting employers with the discipline of employees and termination of employment, negotiating collective agreements,...

Nick Ruskin, KL Gates, Australia, employment claims lawyer, anti discrimination issues attorney

Mr Ruskin practises in labour relations and employment law. He represents corporations in a number of industries including energy, retail, services and healthcare, and public sector clients in the health, higher education, government and community sectors.

He has extensive experience in labour disputes, employment claims, anti-discrimination issues, legislative compliance, advocacy before tribunals and providing forthright, practical advice to clients.

He has been engaged from time to time as an external consultant to...