On Wednesday, WorkSafe Victoria announced that it had commenced a significant prosecution against the Victorian Department of Health, formerly the Department of Health and Human Services, regarding the problematic hotel quarantine program.

The multitude of charges include 17 separate breaches of the duty owed to employees and a further 41 breaches of the duty owed to other people affected by the Department’s program, notably staff on secondment to the program and third-party security contractors.

The breaches relate to the period between March and July 2020 when the Department conducted Victoria's first hotel quarantine program.

WorkSafe stated that the nature of the allegations include that the Department of Health failed to:

• appoint people with infection prevention and control (IPC) expertise to be stationed at hotels it was using for the program;
• provide security guards with face-to-face IPC training by a person with expertise in IPC prior to them commencing work;
• provide written instruction for the use of personal protective equipment (or initially failed); and
• update written instructions relating to the wearing of masks at several of the hotels.

Although it is possible that the Department will enter into an enforceable undertaking in response to the prosecution, if the matter were to proceed to a hearing, the potential maximum penalty is approximately $1.5 million for each charge, depending on the date of the offence.

In the present matter, it appears that WorkSafe determined that it was not in the public interest to initiate prosecutions against any hotels, security firms, or other government departments and agencies.

This prosecution signals an important step by a safety regulator to enforce breaches of COVIDSafe protocols. The prosecution puts employers on notice of their potential liability if they also fail to take reasonably practicable steps to ensure that COVIDSafe protocols are implemented in high-risk environments.