Friday, 7 August 2020

Update 10: Stage 4 Restrictions – What do metropolitan Melbourne employers need to know?

Permitted Work

From 11.59pm, Tuesday 5 August 2020, businesses in Metropolitan Melbourne must be closed for onsite work unless they are a “Permitted Work Premises”.

Workplaces are either:

  1. required to be closed for on-site work (working from home will still be permitted);
  2. permitted to be open for on-site work, provided appropriate safety measures are in place, such as a COVID Safe Plan; or
  3. permitted to be open for on-site work with restricted operations or industry specific obligations.

Businesses which can remain open include supermarkets, grocery stores, bottle shops, pharmacies, petrol stations, banks, newsagencies, post offices, frontline businesses including health care providers.

Businesses which must close include other retail, some manufacturing and administration, unless there are specific circumstances meaning they need longer to shut down safely.

Businesses which can operate subject to restrictions include food production, waste collection and supply chain logistics can continue to operate but under significantly different conditions.

Abattoirs, along with warehousing and distribution centres, must scale back their workforce to two-thirds. The Premier announced last night that he would give major warehouses and distributions an extra 48 hours to comply with this requirement.

Major construction sites may only have up to 25% of the normal workforce onsite, and small-scale construction will be limited to a maximum of 5 people onsite.

Retail stores can operate contactless ‘click and collect’ and delivery services with strict safety protocols in place, and hardware stores can remain open onsite for tradespeople only.

There are also additional requirements including a COVID-Safe Plan, extra PPE, staggering shifts and breaks, health declarations and more support for sick workers to ensure they stay home.

The Victorian Government has released a table that summarises which businesses will be Permitted Work Premises and therefore permitted to continue to open for onsite work.

The Victorian Government has also confirmed that:

  • “Ancillary” and “support” businesses are able to open on-site to ensure the necessary production, supply, manufacture, repair, maintenance, cleaning, security, wholesale, distribution, transportation or sale of equipment, goods or services required for the operations:
    • of a Permitted Work Premises (in other words, if a business is required to support a worksite that is allowed under Stage 4 Restrictions to be open e.g. aged care, health, food businesses etc, they will also be allowed to remain open for that purpose only); or
    • for Closed Work Premises where there are safety or environmental obligations.
  • Services and ancillary services that relate to the COVID-19 health response are Permitted Work Premises.
  • Services connected with animal health, husbandry, or welfare, including the RSPCA, are Permitted Work Premises.
  • Union/peak body/employer organisation officials attending a worksite as permitted by law or for Occupational Health and Safety (OHS) advice is permitted.

Even though Permitted Work Premises can remain operational, it is important to emphasise that they may only have employees on-site if it is not reasonably practicable for the employee to work from home. This means that some employees performing ‘Permitted Work’ may be doing so from home.

These restrictions are in place for 6 weeks, however depending on the sustained level of infection of COVID-19 in Metropolitan Melbourne, may be extended.

For those businesses that are required to close and working from home is not possible, there are a number of options available to employers to manage staff during this period, including stand downs (including JobKeeper Enabling Stand Downs or Directions), directing employees to take leave, reducing hours of work by agreement or, where there are no other alternatives, redundancy. See our previous updates for more information.

Permitted Worker Permit Scheme

As part of the Stage 4 restrictions,  employees who attend work onsite at a Permitted Work Premises must be issued with a Permitted Worker Permit (Worker Permit) by their employer.

An employer can issue a Worker Permit to their employee if the business is a Permitted Work Premises, the employee is working in an approved category for on-site work, and the employee cannot work from home. This includes contractors, and sole traders who may need to issue a Worker Permit for themselves and employees who live in Metropolitan Melbourne but work in regional Victoria who are currently under Stage 3 restrictions.

However, an employee does not need a Worker Permit if they are at risk at home, such as at risk of family violence, or if they are employed in law enforcement, emergency services workers or healthcare and they carry employer-issued photographic identification, which clearly identifies the employer.

An employee may travel to work without a Worker Permit once to get their first permit.  Once issued, the employee must carry the Worker Permit (or an electronic copy on a mobile device) and photo identification when travelling to and from the workplace and present this to authorities upon request.

It is important that employers do not issue Worker Permits or issue invalid or misleading Worker Permits may be liable for penalties of up to $19,826 (for the individual) and $99,132 (for the business).

Anyone who breaches the Worker Permit requirements may also be subject to an on-the-spot fine of up to $1,652 (for individuals) and up to $9,913 (for businesses). This includes employers and employees who do not carry their Worker Permit when travelling to and from work.

Access to Childcare

From 6 August 2020, only the children of workers at a Permitted Work Premises and vulnerable children will be able to access childcare and kindergarten if they have a Permitted Worker Permit (including childcare) form.

The Permitted Worker Permit (including childcare) form is available for workers at a Permitted Work Premises who are still required to attend work onsite and who do not have anyone else in the household who can supervise their children. For example, the other parent also works at a Permitted Work Premises or in the case of a single parent household.

The Access to Childcare and Kinder (Working from Home) form is also available to permitted workers who are working from home and are unable to supervise their children in the course of their duties and who do not have anyone else in the household who can supervise them.

If a school or childcare centre that an employee’s child attends has closed and the employee is unable to access childcare in accordance with the restrictions above, permanent employees may be are able to access paid personal/carer’s leave, and casual employees are able to take unpaid carer’s leave to care for their children. This is because personal leave is available in an unexpected emergency for a member of the employee’s immediate family or household, where that person requires their care or support.

If the children are teenagers and the employee wants to take leave, employers may wish to discuss whether it is appropriate to take personal leave.

COVID Safe Plan

Under Stage 4 restrictions, all Permitted Work Premises which remain open for onsite work must implement a COVID Safe Plan by 11.59pm on 7 August 2020, unless the business has fewer than five workers working at a workplace. Businesses with multiple premises must complete a Plan for each worksite.

While it is not a requirement that businesses which have employees solely working from home to complete a COVID Safe Plan, this will likely be a requirement if the business is permitted to trade in future once restrictions ease.

Employers must document and evidence implementation of the COVID Safe Plan, and they must regularly review and update the COVID Safe Plan, including when restrictions or public health advice changes.

A COVID Safe Plan must set out:

  • the actions taken by the workplace to help prevent the introduction of COVID-19;
  • the level of face-covering or personal protective equipment (PPE) required for the workforce;
  • how the workplace will prepare for, and respond to, a suspected or confirmed case of COVID-19; and
  • how the workplace will meet all of the requirements set out by the Victorian Government.

Some higher-risk industries or workplaces have additional requirements of employers and employees.

COVID Safe Plans do not need to be lodged with the Victorian Government. However, they may need to be provided to the Department of Health and Human Services or Worksafe upon request or in the event of a confirmed positive case at the workplace. There will be random business spot checks for COVID Safe Plans.

Once the COVID Safe Plan is complete, employers must share it with their staff, including employees and occupational health and safety representatives.

A template COVID Safe Plan is available from Business Victoria’s website, however we suggest that these are tailored as appropriate to the particular working environment.

Failure to comply with the requirement to implement a COVID Safe Plan can result in an on the spot fine of up $9,913 and up to $20,000 for serious offences.

Record Keeping Requirements

The Stage 4 restrictions also require employers to keep a record of all workers and all visitors who attend the workplace for longer than 15 minutes, including their first name, a contact phone number, the date and time at which the person attended the workplace, and the areas of the workplace which the person attended.

There is an exception for employers who operate a market, market stall, a retail facility or retail shopping centre with respect to customers who attend that workplace, where it is not practicable to comply with the record keeping requirement, or in relation to essential support groups if confidentiality is typically required.

Employers must use reasonable endeavours to protect any personal information collected from use or disclosure other than in accordance with a request made by an Authorised Officer, and destroy the information as soon as reasonably practicable following 28 days after the attendance at the workplace unless another statutory requirement permits or requires the personal information to be retained.

Density Quotient and Signage

Employers must also comply with the density quotient for each shared space and publicly accessible area at the workplace of 1 person per 4 square metres.

This applies to both indoor and outdoor Permitted Work Premises.

Stage 4 restrictions also require employers to display a sign at each public entry to each publicly accessible space that includes a statement specifying the maximum number of members of the public that may be present in the space at a single time, being the number permitted by the density quotient, rounded down to the nearest whole number.

A person who owns, operates or controls a market stall, market or retail shopping centre must limit the number of members of the public permitted by the density quotient as it applies respectively to the market stall, market or the retail shopping centre, and use reasonable endeavours to implement relevant recommendations by the Victorian Government to manage public health risks arising out of the operation of the facility.

Cleaning

Employers must take all reasonable steps to ensure that shared spaces at which work is performed and areas accessible to members of the public at a Permitted Work Premises are cleaned on a regular basis.

Employers are required to:

  • clean frequently touched surfaces, including toilets and handrails, at least twice per day;
  • clean surfaces when visibly soiled;
  • allow a reasonable period of time to elapse since the conclusion of any earlier event to allow for cleaning in between events;
  • clean surfaces accessible to a particular group between groups (e.g. cleaning surfaces between shifts of workers); and
  • clean surfaces immediately after a spill on the surface.

Reducing work across multiple sites

An employer must not require or permit a worker to perform work at more than one workplace of the employer.

However, there is an exemption where it is not practicable to limit a worker to only one workplace. For example, healthcare and social care workers, tradespeople performing essential repairs.

Where such an exemption applies, the employer must be able to demonstrate the systems of work which it has put in place to minimise the number of workers working across multiple workplaces, for example, rosters.

If a worker is working at more than one workplace for two or more different employers:

  • the worker must provide a written declaration to each employer to advise them that the worker is working at more than one workplace and must provide details of the other workplace to each employer; and
  • each employer must maintain a record of all workers who have disclosed to the employer that they are working across more than one workplace.

We note that the Chief Health Officer can amend and update Stage 4 restrictions, including the definition of what is a Permitted Work Premises from time to time and it is therefore crucial that employers keep up to date with their obligations. HR Legal will provide updates as more information is released and the situation develops.

HR Legal can assist employers with preparing documentation such as COVID Safe Plans and providing advice on the Directions and related government material.

Please note that this information is accurate as at 7 August 2020. Please also refer to the Department of Health and Human Services as this rapidly changing situation develops.

This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

Scroll Up