Workers Compensation, Health and Safety and COVID-19

The Work Health and Safety Act 2011 (Cth) (“the WHS Act”) and, in South Australia, the Work Health and Safety Act 2012 (SA) (“the SAWHS Act”) exist to ensure the health and safety of people in the workplace. Both the WHS Act and the SAWHS Act create offences with respect to the breaching of duties in relation to health and safety, and the maximum penalties include significant financial penalties and imprisonment.

We have previously written about the duties that the harmonised Work Health and Safety legislation (which operates in all Australian jurisdictions other than Victoria and Western Australia) could potentially impose on any entity that meets the definition of a person conducting a business or undertaking (“PCBU’s”).^[1] It is arguable that PCBU’s could even be held liable for outbreaks of COVID-19 in their workplaces under the WHS Act or the SAWHS Act, as they currently are for other breaches of their health and safety duties.

This is particularly significant as we approach the middle of Winter in Australia and because of the recent emergence of the highly transmissible Delta variant. The concerning outbreaks in NSW and Victoria recently have reminded us of the ever-present danger we face from COVID-19. Despite the fact that the Australian rollout of the COVID-19 vaccination has begun, the stuttering nature of the rollout means that not enough people have been vaccinated to offer widespread community protection. As such, we expect that COVID-19 will continue to be a significant threat for some time yet.

Under the Return to Work Act 2014 (SA) (“the RTW Act”), a ‘disease’ can be considered an injury.^[2] A ‘disease’ is further defined to include “any physical or mental ailment, disorder or morbid condition, whether of sudden or gradual development”.^[3]

An injury is only compensable under the RTW Act if it has arisen from employment, and the employment must have been a significant contributing cause of the injury.^[4] The test for this is the “balance of probabilities”.^[5]

In Ward v The State of SA (Department for Primary Industries and Regions SA (PIRSA)) [2016] SAET 28 (“Ward”), the use of the word “significant” was examined. His Honour Deputy President Judge Gilchrist stated that:

“The word ‘significant’ as it appears in s 7 of the [RTW] Act is not a term of art. It is an ordinary word that requires a trier of fact to make an evaluative judgement as to whether or not there is a sufficiency of a connection between the worker’s employment and the injury to permit the conclusion that the worker’s employment was a significant contributing cause of the injury.

The use of the indefinite article ‘a’ is important. It means there can be multiple contributing causes to an injury, and that one or some can be very important, yet some other cause that is less important can nonetheless still be a significant contributing cause.”

In Roberts v State of South Australia (TAFE SA) [2016] SAET 58 (“Roberts”), His Honour Deputy President Calligeros considered Ward and stated that:

“Ultimately, whether employment is a significant contributing cause of an injury is a question of fact which will be determined by the facts of each case.”

The authorities lend to the proposition that, regardless of whether an employer has stringent or lax safety standards and whether or not they are complying with their obligations under the WHS Act and/or the SAWHS Act, if an employee contracts COVID-19 and the employment is found to be a significant contributing cause of them contracting COVID-19, the employee will have entitlements pursuant to the RTW Act.

For instance, if an employee at an aged care facility contracts COVID-19 shortly after a number of residents are also diagnosed, then it would be very easy to argue (and have it found) that the employment was a significant contributing cause to their injury.

A Safe Work Australia report published in November 2020 disclosed that at 31 July 2020, there had been a total of 533 workers’ compensation claims lodged across Australia. Of those claims, 253 were accepted, 95 were rejected (for a range of reasons, including cases where the worker ended up testing negative for COVID-19, or where evidence showed that the virus was not contracted as a result of employment), and 185 claims were pending. The claims were not all necessarily made by people who had contracted COVID-19, either. A portion of the claims related to mental health impacts related to the virus, and a portion were related to people who were required to submit to a COVID-19 test or isolate. Only four of these claims were from South Australia.

The extent of the entitlements that flow will obviously vary depending on the severity of the illness experienced by the employee. However, given that there is a risk of death, as well as reports that people are suffering long-lasting side effects of the disease, the entitlements could be extensive.

If an employer has strict safety standards in place and ensures that they are complying with their obligations under the WHS Act and the SAWHS Act, then this would be of assistance in making an argument that the employment was not a significant contributing cause in the event that an employee was to contract COVID-19 (obviously though, this would all come down to the individual facts in each case).

Genomic sequencing testing allows the source of exposure to be identified. This testing would provide scientific evidence that employment was (or was not) a significant contributing cause of the injury and makes it even more important for employers to have strict safety standards in place.

While we note that South Australia is extremely well positioned compared to other parts of the world when it comes to managing and preventing the spread of COVID-19, the recent clusters linked to medi-hotels in Adelaide, Sydney, Perth and Melbourne are timely reminders of the risk of liability under the RTW Act, and the need for employers to have appropriate policies in place to protect their employees (and, in turn, themselves). Significantly, the clusters have shown the sophistication of the genomic sequencing testing, which allowed the sources of the infections to be definitively identified.

Regardless of the size of your organisation, we recommend that you contact us to discuss whether your organisation has an appropriate work health and safety policy with respect to COVID-19 and if you need any assistance in developing your own policies.