What you need to know
- The interim report contains recommendations relevant to hotel owners and operators in relation to selection criteria, training, PPE, cleaning, auditing and the engagement of personnel.
- The final report is due to be released on 21 December 2020.
What you need to do
- WHS laws require officers of a 'person conducting a business or undertaking' (PCBU) to exercise due diligence to ensure the PCBU meets its health and safety duties. This is a positive, ongoing duty, which officers owe every day. The approach being taken by regulators and courts to the enforcement of WHS duties underscores the importance of duty holders being diligent when discharging their work health and safety duties.
- Hotel owners and operators should conduct a risk assessment in light of the recommendations in the interim report to ensure that all possible hazards are identified and adequately controlled, including checking that existing systems comply with WHS laws, are enforced and that workers are regularly informed and trained about those systems and any changes to them.
- Directors of each PCBU should undertake personal due diligence to satisfy themselves that appropriate steps are in place for the PCBU to meet its obligations and eliminate or minimise risk.
- Hotel owners and operators should also review their staffing and service contract arrangements to ensure that they address the interim recommendations (e.g. relocation and return to work).
- Keep a look out for the final report, which is likely to contain further recommendations significant to hotel owners and operators.
Following weeks of public hearings, Victoria's COVID-19 Hotel Quarantine Inquiry was set to release its final report into the handling of the hotel quarantine program in Victoria, and its recommendations for the future of program, last Friday, 6 November 2020. However, delivery of the final report has been delayed to 21 December 2020 due to the late provision of additional material, with the Inquiry instead releasing its interim report in its place.
The interim report provides 69 recommendations to assist in the development of a future quarantine program in Victoria. The Inquiry has proposed that a facility-based model and home-based model operate concurrently, with the Inquiry finding that hotels remain a reasonable and viable option for facility-based quarantine.
Significance of the recommendations
In making its recommendations, the Inquiry has recognised the paramount importance of ensuring not only the safety of those placed in the quarantine program, but also the safety of those working in the program, including both clinical and non-clinical personnel.
As dutyholders under work health and safety laws, hotel owners and operators already have significant statutory responsibilities to ensure the health and safety of their staff and other persons at their hotel, including contractors, guests and other visitors. Accordingly, while the recommendations relate to the development of a future quarantine program in Victoria, they highlight some of the risks and challenges of safely implementing hotel quarantine arrangements across Australia.
Accordingly, hotel owners and operators should be aware of the proposed requirements set out in the recommendations so that they can assess whether their participation in quarantine programs is feasible from both a safety and risk perspective, considering the physical, operational, personnel and commercial restraints of their businesses. Each dutyholder must consult, cooperate and coordinate with other dutyholders as well as engaging with workers about safety measures, so good communication between owners, operators and government is critical to compliance.
For properties which aren't participating in a quarantine program, the interim report's observations on safe practices during the pandemic remain useful guidance. Directors of each PCBU should take this opportunity to undertake personal due diligence to ensure that appropriate safety measures are in place, and that there is clear communication about which dutyholder is responsible for each aspect of compliance.
What features will a hotel require to be selected for the program?
The hotel needs to be a safe and suitable physical environment for a quarantine facility. The interim report proposes certain suitability criteria, including that the hotel:
- is sufficiently proximate to a hospital and is within commuting distance for adequate numbers of skilled personnel;
- is able to allow for physical separation (which may involve spatial and physical barrier separation and the restriction of movement);
- is able to implement all necessary infection and control requirements and have the capacity to make any necessary modifications to minimise transmission risk;
- is able to provide safe access to outside areas for fresh air and exercise breaks (which requires sufficient physical layout and staffing); and
- is able to provide for specific needs, such as mobility and infants.
What will the personnel requirements be?
The interim report proposes that a government-appointed Site Manager be responsible for the overall operation of the facility. Under the Site Manager should be a mix of on-site personnel, including an infection prevention expert, contract tracing unit, various clinicians, a COVID-19 testing team, operational team leader, a cleaning team, food services, service personnel and a security team.
Additionally, 24/7 police presence is proposed, which would include controlling access, entry and exit, having a presence in the hotel foyer and having mobile presence patrolling the floors.
The report does not detail whether these personnel should be contracted by the government, or by the hotel owner or operator.
Importantly for owners and operators, it is recommended that dedicated personnel be utilised. That is, every effort should be made to ensure that no personnel are working across multiple quarantine sites or in other forms of employment. To achieve this, the report recommends that personnel should be engaged on a salaried basis, as opposed to on a temporary or casual basis.
It is also proposed that paid sick leave be provided to staff in the event of a positive diagnosis or the need to isolate for whatever reason. The report recommends that terms and conditions of engagement for all personnel should require that if the person becomes unwell or at risk of contracting COVID-19, they will be financially supported so that they can self-isolate without loss of income.
It also recommends that employment contracts and service contracts should address the requirement to self-isolate in certain circumstances and should include necessary supports, such as the need to relocate if necessary and have a managed return to work.
Accordingly, hotel owners and operators who plan to participate in the program (or continue their participation) should consider reviewing their existing employment and service contracts to ensure that they comply with the proposed recommendations. They should also consider preparing precedent contracts for future use that sufficiently address these requirements, as well as preparing draft policies and other relevant supporting documents.
Other recommendations – training, PPE, cleaning and auditing
Hotel owners and operators should also be aware of the following recommendations relating to training, PPE, cleaning and auditing:
- all personnel will be required to undertake induction and ongoing training in safety and infection prevention and control;
- the Site Manager will be responsible for ensuring that PPE is acquired, distributed and used by personnel – appropriate PPE should be available on-site and personnel should be trained in PPE use, tested on their understanding and the use of PPE should be monitored and supervised;
- the Site Manger will ensure that cleaning practices, including 'swab testing', is overseen by infection prevention and control experts; and
- the quarantine facility will be subject to regular, independent safety audits, and regular internal auditing and maintenance of a risk register should be undertaken.
It is expected that these topics will be dealt with in more detail in the final report.
The Inquiry's terms of reference include to inquire into, report and make recommendations in relation to the decisions and actions of, and communication between, government agencies, hotel operators and private contractors, so the final report may detail any past mistakes made by hotel operators and provide some further guidance as to future conduct.
Authors: Jennie Mansfield, Partner; Tamara Lutvey, Senior Associate; and Madeleine Depace, Graduate.
