Is COVID-19 a WHS/OHS hazard?

If you are a worker or in control of a workplace, you have duties under the WHS/OHS legislation in Australia to manage the risk of any adverse effect to the health and safety of yourself, as well as those you have influence and control over in a workplace.

This includes the work that routinely occurs on the common property of a residential strata property, mixed-use commercial building or aged care facility.

Definition of a PCBU or Duties Holder

A person conducting a business or undertaking can be loosely defined as the party(s) that either conduct, supervise or control works in a workplace – including volunteers. For the purposes of residential strata and community living premises, the common property of the scheme becomes a “workplace” whenever work is being carried out, and the Committee for the Body Corporate or strata scheme become the supervising entity.

Persons conducting a business or undertaking who have management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace is without health and safety risks to any person. Ref: Managing the work environment and facilities Code of Practice 2011.

This means that the duty to provide and maintain a safe work environment and adequate facilities may be shared between duties holders. For example, a Body Corporate or Owner’s Corporation owns the common property, however the Caretaker or Facilities Manager coordinates and arranges the works to occur on the common property. In these circumstances the building owner and the building manager have a duty to consult, collaborate, cooperate, and coordinate safe work activities with each other for 100% compliance.

Residential strata schemes and aged care facilities have unique WHS peculiarities where one entity cannot be fully compliant without the assistance of the other. The Body Corporate relies on the Caretaker to deliver its duties compliantly under the Caretaking Agreement in order to satisfy WHS requirements. The Caretaker relies on the Body Corporate to deliver its duties [e.g. approve important repairs and maintenance works to be done or ensure a compliant WHS Plan is in place] so it can be compliant under both its Caretaking Agreement and WHS duties.

Duties of the PCBU or “Duties Holder”

A Caretaker under a Caretaking Agreement has a duty to “coordinate and arrange” works on the common property – with the approval and instruction of the Body Corporate. This fundamentally causes the Caretaker to become the “Health & Safety Representative” [“HSR”] for the common property workplace. The HSR is elected to champion the health and safety requirements and interests of their work group, which for the purposes of residential strata would be those that work on the common property of the scheme. The duties holders or PCBU’s in residential strata and aged care facilities, with respect to the work that occurs on the common property, include:

• The Body Corporate, Owner’s Corporation or building owner
• The facilities manager, caretaker or building manager
• The strata manager [when they issue Work Orders or process invoices for works on common property]
• The service provider [gardener, plumber or fire/lift services contractors, etc.]

In terms of the common property as a workplace environment, the WHS Regulation places specific obligations on the PCBU [building owner and its building manager] in relation to the work environment and facilities for common property workers.

For example, the Body Corporate must:

• Ensure, so far as is reasonably practicable, that the layout of the common property, the lighting and ventilation enables workers to carry out work without risks to health and safety
• Ensure, so far as is reasonably practicable, the provision of adequate facilities for workers, including toilets, drinking water, washing and eating facilities
• Prepare an Emergency Evacuation Plan for workers on the common property

So in a residential strata scheme or aged care facility, this means that the Body Corporate must ensure that all workers on the common property had adequate work facilities, are site inducted to those facilities and have a point of contact to report hazards and concerns to – i.e. the Health & Safety Representative [or building manager].

First Step – Demonstrate a duty of care

The ultimate goal for every Body Corporate [in terms of their common property workplace obligations] is to be in a position to demonstrate compliance under WHS legislation should an adverse workplace event occur in the future. The way to do this is to collate an audit trail of vigilance as a “duty of care”, which fundamentally includes the following list. Consider answering these questions as a “risk assessment”, which basically a “health check” of the common property workplace.

A compliant Body Corporate should be able to answer “Yes” to all these questions and provide an impeccable system of record keeping as proof:

• Do we have a current WHS Plan for the common property workplace? And has this WHS Plan been reviewed within the last 12 months?
• Have we nominated a “Health & Safety Representative” to be the point of contact for our WHS matters?
• Are we reviewing and consulting about safety matters on a regular [documented] basis?
• Is our statutory maintenance of common infrastructure and regulatory compliance in order?
• Do we understand where our higher risk hazards lie within our common property workplace? And have we prepared plans to mitigate these risks [i.e. application of controls]?
• Do we have a process for indemnifying the Body Corporate against incompetent and uninsured workers?
• Do we have a process for site inducting our workers and evacuating them in any workplace emergency event?
• Are we storing our chemicals, fuels and hazardous materials in accordance with the applicable WHS Codes of Practice?
• Do we have adequate, functional and clean facilities for hand washing, cribbing, toileting, storage, etc. for our common property workers?
• Do we have a formal process for reporting hazards, risks, incidents and WHS matters appropriately?
• Do we have records of consultation, collaboration and providing information to workers on the common property?

If you have answered “No” to any of these questions, then you need a conforming WHS Plan for the common property workplace, which should provide strategies for compliance in all these aspects.

Application of WHS duties and the COVID-19 hazard

The risk of contracting or transferring Coronavirus in the common property workplace is essentially just another hazard that needs mitigation by the building owner and its HSR. Just like the risk of slip/fall during work, or electrical shock or physical injury from lifting heavy objects and manual labouring [etc.], managing the risk of COVID-19 in the common property workplace is a duty for all PCBU’s.

Return to the questions above. These can all be applied to the COVID-19 hazard, as follows:

• Have we reviewed our WHS Plan to include strategies for managing risk of COVID-19 in our common property workplace?
• Have we nominated a “Health & Safety Representative” to be the point of contact managing our COVID-19 matters, and has he/she been inducted into the COVID-19 risk management plan?
• Is our common property clean and sanitary for workers to use safely? How are we maintaining physical distancing in the workplace? How are we separating [non-worker] residents, tenants and guests from workers?
• How is it likely that COVID-19 might be transferred from one worker to another in our common property? Have we conducted this risk assessment and applied relevant controls?
• Are we checking that our workers have not been in contact with COVID-19 affected “others”, or been overseas in the past 14 days?
• Are we showing our workers where to wash their hands when they arrive on site?
• Are we cleaning surfaces our workers may have touched after they have left?
• Do we have adequate hand washing/drying and sanitising supplies on hand for our workers to use?
• Do we have a formal process for reporting any COVID-19 issues [Incident Report] to the relevant parties?
• Do we have signs and notices about hand washing requirements, hygiene, COVID-19 health and safety posters, etc. to distribute to workers on the common property?

Liability for COVID-19 contracted in the workplace

We are yet to understand the implications of a COVID-19 death arising from contraction that can be traced back to a workplace, however, in this ever-increasing age of civil litigation, it isn’t much of a stretch to imagine claims for personal loss or damages could arise out of circumstances where a bereft family could trace infection back to a mis-managed common property workplace.

WHS is a common-sense, systematic and documented approach to managing the risk of injury, illness or death in a workplace. How does your common property workplace measure up?