Key work health and safety considerations for Boards during the COVID-19 pandemic 

Authors: Louise Rumble, Partner,
and Georgie Richardson, Associate,
Holding Redlich Lawyers





The COVID-19 pandemic has created unprecedented challenges for businesses world-wide. Businesses have had to adapt quickly to address work health and safety challenges arising from the pandemic and transition of staff to remote working arrangements.
This article looks at key work health and safety issues Boards need to be aware of, and address, in light of the COVID-19 pandemic.

Safety governance

Directors have a legal duty to implement and monitor systems to ensure safe working conditions in their workplaces as far as is reasonably practical.  The uniform safety legislation which is in most States and Territories contains a positive obligation on directors to exercise due diligence in relation to work health and safety.

The work health and safety legislation also contains a useful framework for directors to follow when it comes to safety governance.  It can also be applied to other areas of workplace governance.
Under this legislation, directors have a duty, in their personal capacity, to ensure a corporation complies with its obligations.  The standard of this duty is to exercise due diligence.  Section 27(5) of the model Work Health and Safety Act provides a definition of due diligence which contains six key elements and requires that directors (and officers) take reasonable steps to:

  1. acquire and keep up-to-date knowledge of work, health and safety matters;
  2. gain an understanding of the nature of the operations of the business and generally of the hazards and risks associated with those operations;
  3. ensure that there are appropriate resources and processes to eliminate or minimise risk to health and safety available for use, and are used;
  4. ensure that there are processes for receiving and considering information regarding incidents, hazards and risk and responding in a timely way to that information;
  5. ensure that there are processes for complying with any duty or obligation under this Act and that such processes are implemented; and
  6. verify the provision and use of the resources and processes referred to in points (iii) – (v) above.
This definition of due diligence provides a guide for the approach and systems that a Board needs to adopt in relation to safety.  It is also a helpful guide when dealing with broader governance issues in the workplace area.

Specific questions for Boards to ask management to ensure they are satisfying their work health and safety obligations include:
  • What steps are being taken to ensure workers are regularly updated about COVID-19 and ways to minimise health risks?
  • What steps are being taken to ensure the health and safety of those workers who cannot work from home?
  • How is the business ensuring the health and safety of workers who are working from home?
  • What steps are being taken to minimise physical and psychosocial hazards while workers are working from home?
  • What steps are being taken to ensure workers feel supported during this time and how is the business proactively supporting those workers who may be more at risk?
In order to ensure directors can satisfy their due diligence obligations, Boards must set up a comprehensive compliance and risk management regime to monitor how management is ensuring compliance with relevant advice and eliminating risks related to COVID-19 so far as reasonably practicable.
In light of COVID-19, there are two emerging areas where Boards need to ensure that they are satisfying their due diligence obligations under work health and safety legislation:
 

  1. Psychosocial hazards

Work health and safety laws impose a primary duty of care to ensure the psychological and physical health of workers.  COVID-19 is an unprecedented situation, and is a stressful time for many people, which can cause psychosocial hazards for workers.  A psychosocial hazard is anything in the design or management of work that causes stress.  Work-related stress if prolonged and/or severe can cause both psychological and physical injury.  Psychosocial hazards arising form COVID-19 may include:
  • increased work demand;
  • isolated work – where workers are working from home;
  • low levels of support – workers working in isolation may feel they do not have the usual levels of support that they would otherwise receive to do their jobs or where work demand has increased, supervisors may not be able to offer the same level of support as they did prior to COVID-19;        
  • poor environmental conditions – temporary workplaces may not have appropriate workspaces or work environments to undertake the work.  Risks can arise from other factors such as stress associated with caring for children, relationship strain or domestic violence; and/or
  • poor organisational change management – if businesses are restructuring to address the effects of COVID-19 but are not providing information or support to workers.
Boards should ensure that their organisations have clear risk management processes in place which:
  • address the need to consult with workers on any risks to their psychological health and how these can be managed;
  • provide workers with a point of contact to discuss their concerns and to find workplace information in a central place;
  • allow for the distribution and sharing of information from official sources and any relevant information as it evolves;
  • provide workers with a point of contact to discuss their concerns and to find workplace information in a central place;
  • inform workers about their entitlements if they become unfit for work or have caring responsibilities;
  • proactively supports those workers who may be more at risk of workplace psychological injury (e.g. those working from home); and
  • refers workers to appropriate channels to support workplace mental health and wellbeing, such as employee assistance programs.

  1. Working from home risks

Organisations are expected to take reasonable steps to ensure the safety of their workers while they are working remotely.  Under applicable work health and safety legislation, organisations and the workers working from home have a duty to take such measures as are practicable to ensure that the workplace, or the means of access to, or egress from, the workplace are such that exposure to hazards is minimised.
This obligation exists whether or not the requirement to work from home is voluntary or at the direction of the organisation, for example, arising from a government recommendation.
There are a number of ways that an organisation can assess whether there are any home-based risks that need to be controlled for their staff.  The selection of risk assessment approaches will depend on factors including:
  • whether the organisation already has a policy in place and tools for undertaking home-based work risk assessments;
  • whether, within the timeframes imposed by a government recommendation or direction for an office shut down, those tools can be used or not;
  • the level of experience for affected workers in assessing the risks; and
  • the resources of the organisation to manage any risks identified, including provision of an alternative work location.
Further, reasonable steps should be taken to ensure a worker’s home-based work area meets workplace health and safety requirements.  An assessment of the work area should be carried out, where possible, before the worker starts working from home.  Key considerations may include:
  • risks associated with slips, trips and falls;
  • workstation ergonomics;
  • electrical safety;
  • psychosocial risks such as personal security and isolation; and
  • environmental hazards such as noise.

Risks arising should directors fail to exercise due diligence

A breach of work health and safety laws is a criminal offence and the state based regulator will generally pursue the body corporate responsible.  However, recently regulators have prosecuted both the body corporate and the individuals driving the entity.

It is clear that there is a real focus on the steps that directors (and ‘officers’) of organisations should be taking to ensure that a business complies with its work health and safety obligations and directors are being held accountable.  This position will be even more prevalent in light of COVID-19 and the myriad of safety issues that the virus presents.

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.