WORKPLACE LAW
Is this the winter of our discontent? The importance of revisiting WHS while “living with” COVID-19 SEAMUS BRAND, ASSOCIATE, WALLMANS LAWYERS
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hroughout the COVID-19 pandemic, employers have largely relied on Government health advice and Government health orders (GHO) to inform (or compel) their response to COVID-19. In some cases, employers were legally required to comply with a GHO and could rely upon it to justify the making of hard, but necessary, decisions. Many GHO have since been withdrawn and the emergencies giving rise to them declared “over” (at least in a legal sense). Meanwhile, Australia faces its first winter in the era of “living with COVID”. This has left many employers without the GHO safety net. It also leaves other employers (never subject to a GHO) with the continued uncertainty as to precisely how the manage the workplace risks of COVID-19, particularly during this “winter wave”. This article serves as a reminder that persons conducting a business or undertaking (employers) should not consider the reduction in GHO as an invitation to downplay or become complacent as to the work health and safety (WHS) considerations posed by COVID-19, particularly those involving vaccination. We examine the legal basis and justification for GHO relating to COVID-19 in SA with a particular focus on vaccine directions, then considers whether an employer can rely on that same legal basis and justification, and finally broadly discusses the WHS obligations owed by an employer in the context of COVID-19. On 22 March 2020, the State Coordinator for the State of South Australia (the State Coordinator) declared a Major Emergency in respect of the outbreak of COVID-19.1 From then until the Revocation of the Major Emergency Declaration on 24 May 2022, the State Coordinator issued numerous directions pursuant to s 25 of the Emergency Management Act 2004 (SA) (the EM Act) (together, the Directions). The Directions were intended to achieve the objects of the EM Act, which include the promotion of community resilience and reduction of community vulnerability in the event of an emergency.2
10 THE BULLETIN August 2022
While many South Australians did not contract COVID-19 for considerably longer than the rest of the world, this could be considered an ancillary benefit to the Directions’ primary purpose of ensuring the SA healthcare system would not buckle under the pressure of a pandemic. As we all no doubt remember, we were reminded to comply with the Directions to help ‘flatten the curve’ and ensure we kept the cases below the ‘healthcare system capacity’ line.3 This protection of the healthcare system was undoubtedly to ensure the EM Act’s objects were more likely to be achieved. On 7 October 2021, the State Coordinator directed that a person could not engage in work or perform duties in a healthcare setting from 1 November 2021 unless they had received at least one dose of a TGA approved COVID-19 vaccine and had received, or had evidence of a booking to receive, a second dose of a TGA approved COVID-19 vaccine within one month of that first dose (the Healthcare Vaccine Direction). The Healthcare Vaccine Direction was the time the SA Government mandated vaccination against COVID-19 in certain workplaces. Unlike the Directions issued earlier, the Healthcare Vaccine Direction included a specific purpose: to maintain the provision of, and minimise disruption to, healthcare services in SA despite COVID-19 spreading in the industry and community generally. A review of the Directions mandating vaccinations that followed reveals a similar purpose – maintaining the provision of, and minimising disruption to SA’s education industry,4 passenger transport industry,5 aged care and disability services,6 and emergency services 7 (the Vaccine Directions). Each of these industries and services are no doubt essential to promoting community resilience and reducing community vulnerability during a pandemic which had the capacity to severely cripple the State’s ability to provide some of its core functions by temporarily, but significantly, reducing the
size of its workforce. While the Directions all sought to “flatten the curve” to protect the healthcare sector, the Vaccine Directions appreciated that it is not the only sector that if overwhelmed could critically damage community resilience and exacerbate community vulnerability. When employers not bound by Healthcare Vaccine Direction or the Vaccine Directions implemented their own vaccination policies, they may have taken for granted the existence of the Vaccine Directions as justification enough for their own policy. However, the Vaccine Directions were the SA Government’s measures to achieve the objects of the EM Act and protect the SA Government’s ability to provide some of its most basic functions. Arguably, most employers not subject to the Vaccine Directions do not have an equivalent duty to the population of SA at large. While the State Coordinator’s decision to issue, and later revoke, the Vaccine Directions are certainly indicators of SA’s capacity to cope with COVID-19 as a whole, it would be unwise to use those decisions alone to justify anything more than the promotion of community resilience and reduction in community vulnerability. As such, an employer’s primary approach to managing COVID-19 in its workplace should not find its basis in the need to meet the objects of the EM Act, but instead in the employer’s its obligations owed to protect the WHS of its employees. The Work Health & Safety Act 2012 (SA) (WHS Act) imposes a duty on employers to, as far as is reasonably practicable, eliminate or minimise the risks to health and safety of its employees, customers, clients and visitors to its workplace.8 Whether something is “reasonably practicable” is a question of both law and fact, answered by balancing the likelihood of the risk occurring and the harm that might result with the availability, suitability and associated cost of measures implemented to eliminate that risk.9 Employers in SA must therefore consider the risk of contracting COVID-19 and
