Notifying SafeWork NSW

From 20 January 2022, due to the evolving health considerations, the NSW Minister for Health issued an exemption to clause 11 of the Public Health (COVID-19 Self-Isolation) Order 2021 (PHO). This means the NSW Government no longer requires Schools (as a person conducting a business or undertaking as defined in the PHO) to notify SafeWork NSW if a worker tests positive for COVID-19.

Instead, schools must notify SafeWork NSW in situations where a worker/s has:

  • contracted COVID-19, or is likely to have contracted COVID-19 at the workplace and has been hospitalised due to COVID-19; or
  • a fatality caused by contracting COVID-19 at the workplace or is likely to have contracted COVID-19 at the workplace.

In either event, within 24 hours of becoming aware of that fact, you may contact SafeWork NSW directly on 13 10 50 or complete your notification online.

Notifying the school’s workers compensation insurer

Separately, section 44 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) requires employers to notify their workers compensation insurer within 48 hours after being made aware of a worker receiving a workplace injury. A COVID-19 diagnosis may be a compensable workplace injury as a disease under workers compensation legislation. This has been confirmed in a recent decision of the NSW Personal Injury Commission, finding a worker’s contraction of COVID-19 in the course of employment, as well as the complications he suffered because of the disease, falls within the meaning of personal injuries under section 4 of the Workers Compensation Act 1987 (NSW).

It is key to note that, the determination of the existence of a workplace injury will always be judged by its own unique set of circumstances.

Schools are encouraged to carefully consider its workers compensation insurer’s notification obligations to ensure its compliance with policy. Using icare as an example, it requires employers to notify cases where its worker(s):

  • has contracted COVID-19 at school (or was likely to have been contracted at school); or
  • attended the workplace while infected with COVID-19.

Schools may wish to contact their insurer to confirm any additional notification obligations.

Collection of Employee Vaccination Information

In a recent recommendation, the Fair Work Commission has reaffirmed its consideration of employers’ appropriately implemented COVID-19 safety measures to be both lawful and reasonable.

The Commission’s recommendation follows a dispute from the unions about BHP’s direction for all its workers at its coal mines and worksites to meet the Site Access Requirements (SAR), to be fully vaccinated by 31 January 2022 and provide proof of vaccination by that date, including the type of vaccination and date received.

The unions argued the SAR was not a reasonable and lawful direction as BHP workers were placed under pressure to balance their choice of getting vaccinated and having their employment terminated, as well as alleging the direction contravened the Privacy Act 1988 (Act). The union argued the Australian Privacy Principles 3.3 prevented BHP from collecting sensitive information, which includes a worker’s COVID-19 digital certificates, without the individual’s consent. The concerns they raised were:

  • such ‘consent’ was not given by staff particularly when it arises from the threat of disciplinary action and termination of employment; and
  • the information requested and collected, such as the type of vaccine received and the date of injection was not reasonably necessary for, or directly related to BHP’s function or activities.

The union argued that BHP had alternative methods it could have implemented instead of collecting its worker’s COVID-19 digital certificates. This included having workers display their digital certificate upon entry to their worksites and/or through the ‘Check in Queensland’ app.

The Commission ultimately recommended that BHP’s employees through frequent consultation, were ‘more than adequately’ informed about the collection of sensitive information and the intended purpose for its collection. The Commission acknowledged that while refusing to comply with the SAR will result in the employee facing the consequences of termination of employment, the consent sought through the SAR was not vitiated by coercion or duress. The SAR by itself, does not force BHP workers to provide their sensitive information, as workers are still able to refuse this direction.

The Commission considered the collection of the COVID-19 digital certificates was reasonably necessary as BHP having direct control over its worksites have an obligation to comply with a broad range of statutory and common law obligations to ensure the health and safety of all persons who access them. The use of ‘Check in Queensland’ app or simply the practice of having a worker display their COVID-19 digital certificate upon entry to site was neither safe nor reasonable in the context of a hazardous mine site.  

Ultimately, for these reasons the Commission recommended BHP’s SAR was both lawful and reasonable and did not breach the Act.

Key Takeaways 

While this case is a non-binding recommendation by the Fair Work Commission, the Commission’s consideration of BHP’s unique workplace requirements is instructive for schools considering the reasonableness of their own collection of the COVID-19 digital certificates and other personal and/or sensitive information. To summarise, Schools may:

  • review and implement their consultation obligations under work health and safety laws and their applicable industrial instruments, particularly to maximise staff awareness of the current PHO and the School’s policy relating to the collection of personal and sensitive information;
  • conducting ongoing risks assessments to address changing health concerns in relation to COVID-19; and
  • consider its privacy obligations, particularly to:
  • seeking individual consent to collect, store and use vaccine information in accordance with policies and procedures;
  • only collecting information that is reasonably necessary for the School’s functions and activities; and
  • maintaining data security and restricting access to appropriate use.

If you have any further queries, please contact the Workplace Management Team at AISNSW on 02 9299 2845.