The NSW Parliament has passed changes to the Work Health and Safety laws that result in employees who become infected with COVID-19 as being deemed to have contracted it at work and as such suffering a workplace injury and able to access workers compensation payments.  The Regulations bringing the changes to life is expected to be released soon, but it is understood that it will address some of the serious concerns raised by similar proposed changes to the legislation that have been attempted in other jurisdictions.

The changes

The NSW Parliament passed a Bill that gives effect to a wide number of changes to numerous pieces of legislation.  The changes to the Work Health and Safety legislation appeared as part of an amendment that was tabled and passed in this process.

The change amounts to, in NSW;

Any employee who contracts COVID-19, and who is employed in  ‘proscribed employment’ will be deemed to have contracted the disease at work, unless proven otherwise, and will be entitled to workers compensation from the time of contraction of the disease, until 7 days AFTER being cleared as no longer infected by a medical professional, or their death, whichever comes first

Proscribed employment

What is critical to understand is what is a ‘proscribed employment’ the amendment lists out many diverse industries, the first amount them is the retail industry.  Restaurants and cafes are included as well.  There is also scope for the Regulation (that will be made by the regulator in the coming days), to determine additional industries, employers or employments that will be covered by this change.

Regulation offers relief for business

The Regulations that will flesh out the changes in a practical sense are being drawn up now, while they have not been released, following conversations about this change it is understood by ACAPMA that the Regulations will mitigate the seeming harshness of the changes in the following ways;  

  • Cost of Deemed COVID-19 claims will not be covered by the business in the form of premium penalties or increases, but be absorbed by the whole workers compensation scheme
  • Deemed COVID-19 Claims will not be attributed to a business claims history
  • Deemed COVID-19 Claims will not rise to the standard of negligence on the part of the business*

*despite this general approach negligence, and the subsequent high penalties, can still be sought and proven where a business plays an active role in the infection of a worker.  For example if a businesses deliberately and knowingly forces or allows an employee to work with COVID-19 that then infects a second employee, the business would be likely to be found negligent in relation to the infection of the second employee and face the full extent of the law.

Response

The changes, coming as they did with no consultation with business, has been met with the same level of concern that a similar proposed change in South Australia saw from many quarters, however if the Regulations end up as ACAPMA understands they will the concern and opposition to the changes will be mostly addressed.

With the passing of the amendment, there are now calls for all other States to adopt similar measures.

More Information

ACAPMA will keep members posted on this as discussions unfold.

For a copy of the changes, see pages 39-40 https://www.parliament.nsw.gov.au/bill/files/3745/Passed%20by%20both%20Houses.pdf