Coronavirus COVID-19 and a FIFO Workforce

Media reports have emphasised that the Western Australian resources sector considers itself well-prepared for the threat of coronavirus COVID-19, and have measures in place to ensure any disruption to production levels is minimised. But it’s important to consider what obligations employers in the mining sector have to their employees and what steps they may take to appropriately respond to the current threat.

Employer duties

Employers are required to provide and maintain, as far as is practicable, a working environment where their workers are not exposed to health risks.

In responding to the threat posed by coronavirus COVID-19, employers must ensure they’re up to date and acting in accordance with the latest health warnings from the Federal, State and Territory Governments. This is likely to require daily action, at least for the next few weeks.

Employers with FIFO workforces may need to issue directives to workers requiring:

• testing or evaluation for coronavirus COVID-19 before travelling to site (given the logistical difficulties associated with testing on site, self-isolating, self-quarantining or transporting a worker who has tested positive back to their point of origin or to hospital, once on site);
• self-isolation and self-quarantine on site, if a worker is displaying symptoms and otherwise has a risk factor such as recent overseas travel;
• disclosure of travel undertaken or arranged, including transit points, so that a risk assessment can be made, taking into account the latest health warnings and directives from the Federal Government;
• prompt disclosure of possible exposure to a person known or suspected to have coronavirus COVID-19, including any persons who have been tested and area waiting results; and
• prompt disclosure of any symptoms, such that individuals can be isolated, until an evaluation of the risk can be undertaken.

Employers should also consider requiring suppliers and contractors (including labour hire providers) to provide regular updates on precautions and risk evaluation in their operations. This will assist in risk evaluation of allowing contractors, labour hire workers and suppliers access to site.

Employers may also want to consider reducing any unnecessary travel to and from site, or between sites, and minimising unnecessary on-site activities.

Employers should give consideration to when employees can access leave, whether paid or unpaid, to deal with a period of self-isolation or self-quarantine. This will depend on their contracts of employment and any applicable industrial instrument, and on the particular circumstances . The Fair Work Act 2009 may also prevent employees from being forced to take unpaid, annual or personal leave, and employers should seek legal advice before attempting to force an employee to take leave. Employees may not be able to access personal leave unless they are unfit for work due to illness or injury, or are required to care for an ill or injured family member.

Employee duties

Employers should also provide accurate and up-to-date information to employees so that employees can take appropriate action to manage their own health and safety.

Employees have a general duty to take reasonable care for their own safety and health at work and to avoid adversely affecting the safety or health of any other person through any act or omission at work.

Employees must consider their own circumstances in determining whether their acts or omissions are putting themselves or others at risk. Decisions by employees to continue to attend work after being tested for coronavirus and while awaiting results may well be placing the health and safety of other workers at risk and constitute a breach of the Occupational Safety and Health Act 1984 (WA) or the Mines Safety and Inspection Act 1994 (WA).

Further, failing to comply with an instruction given by an employer for the safety or health of the employee or other person may be a contravention of the Acts mentioned above. Such instructions given by employers may include not attending a site or workplace until a period of self-isolation or self-quarantine has been completed or a failure to properly disclose travel.

Employers should be clearly communicating to employees that the consequences of certain actions – such as a decision to travel in their R&R or not disclose planned travel so a risk evaluation can be undertake – may include disciplinary action.

Employees who travel will, on their return, have imposed on them by the authorities a period of self-isolation or self-quarantine. Employers should be advising workers of the consequences if they cannot return to site because they are required to self-isolate or self-quarantine, so that workers can make an informed decision before travelling. The consequences may include a period of stand-down or a requirement to take paid or unpaid leave, depending on the circumstances and applicable industrial instruments. Casual workers are generally not entitled to be paid for periods when they are not able to work and do not have any paid leave entitlements to fall back on.

What should employers be doing?

Employers should be:

• staying up to date with the latest warnings and directives from Federal, State and Territory Governments and providing that information to employees;
• providing clear communication to their employees on the risks and consequences of their actions such as travel during R&R;ensuring there are appropriate first-aid and medical evacuation plans in place for an employee who may develop symptoms while on site;taking reasonable steps to minimise the risk while employees are travelling to site (including in respect of in flight arrangements);
• taking reasonable steps to minimise the risk on site (such as by requiring disclosure, reducing unnecessary travel or attendance on site, enhancing cleaning schedules and avoiding large gatherings of employees);
• considering action plans for an actual or suspected outbreak on site; and
• taking legal advice on dealing with their employees such as when employees can be required to take leave, paid or unpaid, and disciplinary action for failure to comply with reasonable directives.

Please contact Leanne Nickels, Joanne Leveridge or David Kiel if you need assistance.