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With the restrictions set to increase for the Greater Sydney region and extend for weeks, the spotlight is currently on the Fairfield local government area and Greater Sydney workers who work more than 50km outside of Greater Sydney (being the outer boundary of Shellharbour, Wollongong, Wollondilly, Blue Mountains, Hawkesbury and Central Coast local government areas).

The NSW Government has now issued Health Orders which came into effect at 12am on Wednesday 14 July 2021, but which take practical effect from 17 July 2021 where a relevant affected worker has taken reasonable steps to be tested by 17 July 2021.

The effect of the Health Orders is to mandate testing for affected workers even if they don’t have symptoms.

Affected workers are those who:

  • reside in, or are staying in temporary accommodation in, the local government area of the City of Fairfield, or
  • workers who reside in Greater Sydney, or are staying in temporary accommodation in Greater Sydney, and who work more than 50km outside of Greater Sydney.

At a glance

  • Workers who need to travel out of the Fairfield local government for work will need to get tested every three days and have evidence of the test available for inspection on request
  • Workers from Greater Sydney travelling to more than 50km for essential work will be required to undergo weekly COVID-19 testing and have evidence of the test available for inspection on request
  • Workers will not need to self-isolate while waiting for the results of testing
  • Occupiers of premises (other than residential premises) must not permit an affected worker to enter or remain at the premises unless they have evidence of a required COVID test.

With approximately 40,000 workers in the Fairfield local government area expected to be moving in and out of the area, more COVID-19 clinics will be needed to minimise queues, reduce frustration and enable work to continue uninterrupted.

For employers who have workers working in, or traveling in and out, of the Fairfield local government area or require testing due to travel beyond the 50 km Greater Sydney boundary, flexibility will need to be provided to enable workers to meet the requirements the Health Order. In short this means employers should:

1. Assess your operations and consider whether movement of workers in and out of the area can be minimised. To the extent it can, consider the capacity to issue lawful and reasonable directions to workers to perform alternative duties, within their skill set which do not involve travel into or out of the local government area.

2. Consult with those workers who must continue to travel in and out of the Fairfield local government area to perform their roles. Clear guidance will need to be given to those workers in respect of:

  • issuing a direction to comply with the Health Order requirements; and
  • the flexibility arrangements can be put in place to enable the worker to attend a testing site and in circumstances where the testing takes longer than anticipated.

3. Communicate with impacted workers on the need to provide evidence of the time and fact of the test. While any failure to comply with the Health Orders carries consequences as contemplated by the Order, a failure to follow a lawful and reasonable direction can result in disciplinary action by the employer. Proof of the test can be in the form of a text message, email or other forms of evidence provided by the testing service or laboratory.

While some workers will seek to get tested prior to working hours, it will not be possible for all and as such there will invariably be situations where a worker is attending a test site during working hours. Many employers will likely be able to absorb this inconvenience and continue to pay the worker notwithstanding they are not working for the period they attend the COVID-19 testing clinic.

However depending on the level of disruption and the time it takes for a worker to be tested, or difficulties the employee has in accessing testing, consideration may be given to whether a variation of working hours may be agreed by the parties.

Key Takeaways

Keeping employees safe and complying with the Health Orders is likely to get harder over the coming days and weeks, as restrictions change and are tightened.

Ensure that you are aware of the latest restrictions. Continue to:

  • Assess your operations. Can they continue in manner that ensures you are in compliance with them?
  • Consult with your employees about what the restrictions mean, and how the business can comply with them.
  • Communicate with impacted workers about what they need to do.

Importantly, occupiers of premises (other than residential premises) must not permit an affected worker to enter or remain at the premises unless they have evidence of a required COVID test. This means that businesses need to check if affected workers can enter their premises.

Further, any person may be directed, if requested by a police officer, to provide proof of residence and evidence that the person has been tested, to ascertain if they are an affected worker.

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