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Have WorkSafe Victoria breached their statutory obligations over the hotel quarantine disaster?

30 August 2021

4:00 AM

30 August 2021

4:00 AM

It’s been eight weeks since the Victorian WorkSafe Authority failed to send to the Director of Public Prosecutions its investigation into the 2020 hotel quarantine disaster that led to 801 deaths. Every day it fails to do this is another day in which it is giving the big finger to the legal requirement it faces. 

We’ve explained this before. In summary, after Self Employed Australia utilized provisions in the Occupational Health and Safety Act, WorkSafe had 9 months in which to advise us of the outcome of their investigations. After they failed to do so we used further provisions that required WorkSafe to send their report to the DPP.   

On 5 August, WorkSafe informed us that it had not supplied its investigation to the DPP. This means that WorkSafe is failing to comply with its statutory obligation and has put the DPP in the position where it also is failing to comply with its statutory obligation. This is placing an ugly stain over the justice system in Victoria.  

It’s now 540 days since the quarantine disaster, 450 days since WorkSafe says it started the investigation and 330 days since we triggered the Act forcing WorkSafe to investigate. 

Compare this to similar triggers for investigations made to WorkSafe in 2019-20. According to WorkSafe’s annual report, it had 11 requests that year and started all investigations within 9 days. The longest time to complete an investigation was 201 days. On no occasion did WorkSafe fail to report to the person who initiated the provisions.  

Why has WorkSafe not complied with the law in this instance? The failure of WorkSafe is obvious and raises suspicion. What’s going on? I explained this and raised questions on radio last week. (You can listen here.)

And talk about double standards. Look at this case. A hyperbaric company has recently been fined $726,750 over the death of a disabled patient. The company and director were found guilty of breaching section 26 of the Act (Duties of persons who manage or control workplaces). This is exactly one of the provisions that we alleged has been breached multiple times by the government in the hotel quarantine mess. And those breaches resulted not in one death but 801 deaths! 

WorkSafe’s Acting Director Health and Safety said this of the case: “If you are running a business in Victoria, you have a responsibility to ensure the health and safety of not only your workers but also members of the public ” We say ‘Yes’ to this. Is WorkSafe going to apply this standard to the Victorian government? So far, ‘No’ is the answer!.

The Acting Director also said, “WorkSafe will not hesitate to take action against employers who put people’s lives in danger by not having basic safety procedures in place.”  Well, we ask for that standard to be applied to the Victorian government. So far, all we see from WorkSafe is not just ‘hesitation’ but outright refusal to comply with its legal obligations. 

Last week we again wrote to WorkSafe asking it to act as the law requires it to act. Here’s our letter. And our major analysis, the Case for the Prosecution, extracts from the Coate Report the evidence that prosecutions should occur.  

For example, at the high end from the very start of the program there was a squabble between the departments of Health and Jobs as to who was responsible to ensure that correct infection control procedures were followed in the hotels. Both denied responsibility. The consequence was that hotel infection control procedures were a shambles. No one was in control. 

The failure to ensure that lines of authority and responsibility for control were clearly established is of itself a breach of OHS law by several departments and individuals in the government. And from this ‘high end’ failure multiple other breaches occurred. For example, failure to properly train staff 

Due to the non-compliance of WorkSafe with their statutory obligations and thus compromising the DPP, the hotel quarantine mess has morphed from being a work safety prosecution issue into also raising the spectre of a compromised Victorian justice system. 

Ken Phillips is Executive Director of Self Employed Australia.

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