FCW Lawyers

Draft COVID-19 Model Code of Practice announced


Draft COVID-19 Model Code of Practice announced

25 September 2020 by Nina Hoang

The Federal Government have announced a new Code of Practice that focusses on PCBU responsibilities in relation to managing COVID-19 in the workplace in order to find a ‘new normal’. While Codes of Practices are not mandatory, they will often be used by Courts and Safety Regulators to identify what controls are reasonably practicable.

Under section 20(2) of the Occupational Health and Safety Act 2004 (VIC) the following factors are relevant in determining what is reasonably practicable:

  1. The likelihood of the hazard or risk concerned eventuating
  2. The degree of harm that would result if the hazard or risk eventuated
  3. What the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk
  4. The availability and suitability of ways to eliminate or reduce the hazard or risk
  5. The cost of eliminating or reducing the hazard or risk

Codes of Practice will inform the regulators of what the PCBU ought to have reasonably known about COVID-19 and how to reduce the risk on its workers.

Who is responsible when it comes to COVID-19?

The Code outlines that the following parties have duties in relation to COVID-19:

  1. PCBUs towards workers (defined as contractors, subcontractors, on-hire workers, outworkers, apprentices, trainees, volunteers an work experience students);
  2. Persons with management and control of workplace for example a landlord or building manager;
  3. Officers of the PCBU to exercise proper due diligence;
  4. Workers to take reasonable care for their own health and safety and take care to not adversely affect health and safety of others; and
  5. Other persons in the workplace like customers and visitors who must take reasonable care for their own health and safety and take care to not adversely affect health and safety of others.

What is the PCBU responsible for?

PCBUs have additional duties under the Code including:

  1. To provide information, training and proper supervision;
  2. Provide adequate and safe facilities;
  3. Prepare updated emergency plan; and
  4. Provide adequate PPE as required.

The most important duty for PCBUs is to undertake a thorough consultation process.

Some key points to take away:

  1. Workers should participate in the consultation, as their input will improve the decision-making.
  2. If COVID-19 has changed working arrangements, ensure there is still enough Health and Safety Representative coverage.
  3. PCBUs should also consult with other relevant duty holders to collectively determine a plan. For example, in office environments different tenants, property manager and the property owner must all consult together. Or in a warehouse, the PCBU must ensure they consult with other third parties like contractors and delivery drivers.
  4. Consultation will assist in determining which controls are appropriate to mitigate the risks of COVID-19.
  5. Consultation should also be undertaken when conducting any risk assessments to identify the risks especially if you have particularly vulnerable workers who need to be accommodated accordingly.

The Code recommends undertaking thorough risk assessments of the work premises and of each worker’s situation and the types of controls that each PCBU should implement. Please see our COVID-safe return to work templates as a starting base to help you with this process.

All businesses are reminded that they should apply this Code in conjunction with the national COVID-19 safe workplace principles.

Have a question or need advice?

Our team is available to clarify any questions you have and provide the right advice for your business and workforce.

Contact Andrew Douglas by email or on 0488 151 503.