Fact Sheet: Regulatory approach to NSW WHS legislation – COVID-19

Fact Sheet: Regulatory approach to NSW WHS legislation – COVID-19

The below is an update from SafeWork NSW to ensure compliance with WHS legislation in response to the COVID-19 pandemic. There are links for further information at the bottom of this post.

SafeWork NSW recognises that the COVID-19 pandemic has created an exceptional set of circumstances and will have significant impacts on a person conducting a business or undertaking (PCBU), workers, officers and other persons with duties under the work health and safety (WHS) legislation.

 

The NSW WHS legislation is a risk-based framework that considers what is ‘reasonably practicable’. SafeWork NSW appreciates that exceptional circumstances require flexibility on the part of the WHS regulators and this is reflected in ‘Our Approach to Work Health and Safety Regulation’ which involves a graduated approach to compliance and enforcement in line with the ‘National Compliance and Enforcement Policy’.

Arrangements to apply while orders are in force under the Public Health Act 2010

SafeWork NSW understands that the Public Health (COVID-19) Gatherings order 2020 may impact NSW workplaces. SafeWork NSW will have regard to the unprecedented pressures on industry and take a common sense and practical approach to our interactions with workplaces. Advisory, compliance and enforcement activity will continue with a primary focus on matters that pose significant risk to public safety and community wellbeing. SafeWork’s actions will be proportionate with a focus on what is reasonably practicable in the circumstances.

 

In particular, SafeWork will take a take 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:

  • participation in face-to-face training and practical hands-on training demonstrations
  • maintaining records in prescribed formats
  • securing access to health surveillance clinics
  • testing of emergency plans or
  • compliance with other regulatory requirements.

SafeWork NSW will generally take a supportive and educative approach to compliance with these requirements during this time, except in cases of significant safety risks to workers or the community, provided duty holders have made genuine attempts to comply with requirements but are non-compliant due to factors outside their direct control.

SafeWork NSW will still respond to matters involving serious incidents or fatalities to seek evidence to determine causation or implement ‘make safe’ provisions. The method of doing this may vary depending on the site, emergency services on-site or other ways of gathering evidence and information.

SafeWork NSW advice

Safework NSW recommends all NSW businesses 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.

PCBU/Employer advice

All businesses should:

  • review their exposure and infection control policies and procedures, actively promote social distancing, good hand and respiratory hygiene and increase cleaning of common areas within the work environment
  • develop and implement safe systems of work (in consultation with workers and/or their HSR’s) that include directions and advice provided by our health authorities, and
  • keep monitoring the COVID-19 situation as it develops, will assist.
  • continue to Notify SafeWork NSW of any work-related fatality, serious injury or confirmed or uncontrolled exposure to a serious illness, including COVD-19.

Health and safety representatives (HSRs)

Health and safety representatives (HSRs) are encouraged to work collaboratively with businesses to consult on WHS risks and controls during this time. HSRs are not entitled to personal medical information of other workers without the consent of the worker, however, are entitled to monitor the rate of exposure and infection of illness or disease in the workplace and work with the business or implementing reasonable and practicable controls.

Worker advice

Workers have  obligations under WHS legislation to protect themselves and others. If a worker believes they are at risk of infection of coronavirus, they should raise their concerns with their manager or WHS representative as soon as possible. If they are not satisfied with the response they may contact SafeWork NSW on 13 10 50 or raise their concerns via our  Speak up platform.

More information

SafeWork NSW will continue to monitor the situation and engage with industry and industry representatives as appropriate.

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