Following on from the October 2021 prosecution of the Victorian Department of Health regarding the problematic hotel quarantine program, WorkSafe Victoria has this week commenced a significant prosecution against St Basil’s Aged Care for allegedly failing to manage a COVID-19 outbreak.

In a media release issued by WorkSafe, the prosecution alleges that in July 2020, after being notified by a worker that they had tested positive to COVID-19, St Basil's failed to:

• require workers to wear personal protective equipment (PPE);
• train workers how to safely don and doff PPE;
• verify that staff were competent in using PPE;
• tell staff when PPE should be used; and
• supervise the use of PPE.

It is alleged that as a consequence of these failures, 94 residents and 94 staff members tested positive for COVID-19, with 45 residents later dying from COVID-19-related complications.

St Basil's has been charged with:

• a single breach of sections 21(1) and 21(2)(a) of the Occupational Health and Safety Act 2004 (Vic) (OHS Act), in that it failed to provide and maintain for its employees, as far as reasonably practicable, a working environment that was safe and without risks to health;
• two breaches of sections 21(1) and 21(2)(e) of the OHS Act in that it failed to enable workers to perform their work safely and without risks to health by failing to provide necessary information and instruction, and supervision;
• three breaches of section 23(1) of the OHS Act in that it failed to ensure, so far as was reasonably practicable, that persons other than its employees were not exposed to risks to their health or safety arising from conduct of its undertaking; and
• three breaches of section 26(1) of the OHS Act in that it failed to ensure, so far as was reasonably practicable, that its workplace and the means of entering and leaving it were safe and without risk to health.

The prosecution is one of the first commenced in relation to a failure to manage a COVID-19 outbreak and could be a signal for more prosecutions in this area across the country.

All persons conducting a business or undertaking (PCBUs) owe a duty of care to take reasonably practicable steps to manage the risk of COVID-19 infection. If there is a serious risk of harm to vulnerable employees or other persons impacted by the PCBUs undertaking, then the adequacy of controls implemented should be verified.