Victoria to mandate face coverings - what does this mean for PCBUs across Australia?

The Victorian Department of Health and Human Services has announced that people living in (or visiting) metropolitan Melbourne and Mitchell Shire will be required to wear a face covering when leaving home for any of the permitted reasons, which currently are:

1. Shopping for food and supplies;
2. Health care and caregiving;
3. Outdoor exercise; and
4. Study or work (if unable to study or work at home).

The wearing of masks is consistent with the updated information published by the World Health Organisation (WHO) which has stated that governments should encourage the general public to wear masks in order to prevent COVID-19 transmission effectively in areas of community transmission.

Currently, face coverings in regional Victoria are recommended in situations where maintaining 1.5 metres distance is not possible, however they are not mandatory. If regional Victorians are visiting metropolitan Melbourne or Mitchell Shire for one of the permitted reasons, they will be required to wear a face covering.

For other areas in Australia, wearing a mask in the community is currently not mandatory. However, the New South Wales Government has now recommended that people wear face masks on public transport or anywhere where they can't social distance. It is expected that this guidance will change and the use of masks is likely to be increasingly mandated.

Exemptions

The Victorian Department of Human and Health Services has advised that there will be some groups of people who are exempt from the mandatory face covering rule, such as:

• those who have a medical reason (eg. breathing difficulties or a physical condition);
• children;
• those who have a professional reason; and
• where it is not practical (eg. when running).

Even those exempt from wearing a face covering will still be expected to carry a face covering at all times to wear when they can. For example, a teacher does not need to wear a face covering while teaching but must carry one in order to wear it during their commute.

As the Victorian Government has only provided an announcement on the rule, we expect that Directions under the Public Health and Wellbeing Act 2008 (VIC) will be released shortly which will provide further details and confirm the exemptions. 

Other important information concerning Victoria

The new rule will be enforced from 11:59pm on Wednesday 22 July 2020, however the Department has advised that people should wear face coverings immediately if they already own one. The fine for not wearing a face covering will be $200. For specific information relating to masks please see the advice from the Victorian Chief Health Officer.

The State of Emergency in Victoria will also be extended until 11:59pm on 16 August 2020, allowing for the enforcement of this direction and other public health directions that may follow.

Furthermore, given the recent increase in cases have arisen from settings where people were working closely together, an inspection and enforcement blitz will be carried out in workplaces across the state. WorkSafe, Emergency Management Victoria and Victoria Police will focus on at-risk workplaces, including distribution centres, call centres and meat processing facilities.

Employers in Victoria should review their workplaces and COVIDSafe Plans to ensure they are abiding by the most recent health directives and are following the guidance provided by WorkSafe Victoria.

Other States and Territories

Wearing a mask in the community is not mandatory outside metropolitan Melbourne or Mitchell Shire in Victoria. Nevertheless, residents and businesses in regions where community transmission is occurring should be taking precaution.

In light of the public health orders and change in guidance as a result of the rising number of cases of COVID-19 in Australia, PCBUs should start considering whether and when they will require their workers to wear face masks and if so, where they will source these masks from. PCBU's around Australia should also to the extent possible, follow any Government guidance material released in their State or Territory that recommends the use of face coverings as a means of mitigating the risk, particularly PCBU's in areas that have been designated as "hot spots".

The NSW Government has published the Recommended Guidance on Mask Use in New South Wales which should assist PCBUs in NSW to determine what type of surgical face masks are necessary in their workplace.

Can / must / should

PPE is a control of last resort therefore; higher order controls (like working from home, design of work environment etc) must also be revisited - for some businesses that may mean reintroducing measures that have been relaxed.

Can: Employers can provide a reasonable and lawful direction to workers to wear a mask but must consider practical and legal implications. This includes whether the requirement to wear a mask is mandatory PPE to control risk, in compliance with Public Health orders or for other reasons.

If a worker refuses to follow a direction to wear a mask it may result in a right to take disciplinary action or exclude the worker from a worksite. However, the basis of the direction will be critical to determining whether it can be enforced, particularly in relation to objections on health, religious or other lawful grounds. Employers should have a clear and procedurally fair process in place for the action it will take if a direction is provided and a worker refuses.

Should: Given the advice of Government Health Authorities employers should require workers and visitors (including customers) to wear a mask as a condition of entry. This will depend on the Public Health Orders in place, other risk mitigation measures, whether physical distancing can be maintained and the employers risk assessment. In any event risk assessments should now be reviewed.

Must: There are some circumstances where masks form part of critical and mandatory PPE (for example health providers). Where a mask is considered necessary PPE the employer must comply with the relevant laws including in relation to its:

• supply (including ensuring it meets relevant standards);
• use (including consistently enforcing its use);
• fit for purpose (including fit testing);
• training and provision of information in its use.

It is important to distinguish between masks that are considered to be mandatory PPE and a critical part of an employer's risk management and the use of surgical masks as part of measures to reduce the national risk of community transmission. Employers should ensure that communications about the use of mask are clear and consistent.

What PCBUs should do

PCBUs will need to undertake risk assessments and consider the application of the hierarchy of controls in ensuring the health and safety of their workers. Any controls already implemented will also need to be reviewed to ensure they remain effective to manage the new and existing risks. PCBUs will also need to revise their COVIDSafe Plans in order to continue to meet their obligations at law.

Where PCBUs elect to, or are required to, mandate the use of face masks as part of its risk mitigation measures in the workplace (as opposed to in compliance with a Public Health Order), the use of masks becomes mandatory PPE and PCBU's will have a duty to:

• consult with their workers when selecting PPE;
• supply the PPE without cost to the employees
• ensure, as far as is reasonably practicable, that the PPE is used or worn by their workers and that the PPE is fit for purpose; and
• provide their workers with information, training and instruction in the proper use and wearing of PPE and its storage and maintenance.

When purchasing PPE, PCBUs should also ensure that the products meet the appropriate standards. Information about PPE standards are available on the Therapeutic Goods Administration website.

For further guidance on the use of PPE, please see the following resources:

• Australian Government Department of Health: Information on the use of surgical masks
• Australian Government Department of Health: When should masks be worn in the community, in Australia?
• Safe Work Australia: COVID-19 Information for Workplaces: Masks
• Safe Work Australia: Personal Protective Equipment