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Safe Work Australia’s Model Code of Practice: Does it enforce safe ventilation?

Note by Peter Vogel, 6th March 2026

Safe Work has just published “Model Code of Practice: Managing the risks of biological hazards at work, the first Code of its kind in the world, provides practical guidance to assist employers with protecting workers and others from exposure to biological hazards in their workplace.” Download it here.

I was keen to see what this COP says about the importance of ventilation in reducing the risk of airborne disease spreading through workplaces like offices, hospitals and schools.

Sadly, this COP adds little to its previous general advice that ventilation is a good thing and employers should do what they think is reasonable. It does offer a case study for a school, but gives very alarming advice (I’ll add my commentary):

Case study 19 – School

Michael is a principal at a school. Prior to school resuming following the summer break he is considering what control measures should be implemented to manage the risks of biological hazards. [Highly unlikely this would occur to an over-worked Principal when the Department does not require it] He asks the maintenance worker to organise for a technician to service the HVAC system used in the building, which was turned off for several weeks over summer, to make sure it doesn’t pose a risk to the teachers or students [Good start, but what about checking that it actually provides the required ventilation?].

When teachers return to work, Michael will encourage them to use natural ventilation in classrooms by opening the windows and doors on days when the weather permits and the outside air is likely to be cleaner than the inside air (e.g. there is no visible smoke, dust, pollen or pollution in the air). [Because the HVAC’s ability to ventilate is unknown?]

In response to an increase in communicable disease transmission in winter the previous year, Michael also asks the school maintenance worker to purchase air purifiers to put in classrooms to supplement the HVAC system over the colder months when opening windows and doors may not be practical. [Apparently no-one has told Michael what the V in HVAC stands for, or that mechanical ventilation is far more reliable than relying on windows]. Once installed, teachers will be trained on how to use the air purifiers and the benefits to their health. They will also be given the opportunity to provide feedback on the implementation of the air purifiers, including any issues they may be experiencing (e.g. noise or drafts). [Why not ensure the HVAC is working correctly and includes proper HEPA filtering?]

Michael also asks the school maintenance worker to develop a schedule to ensure the air purifiers and HVAC systems are regularly maintained and the filters are replaced. [Good start, but there are no standards against which to test performance].

We need standards

The COP refers to AS/NZ1668 standards. Without going into details, these standards are not useful because:

• The standard was written at a time where the main concern was body odour etc. Pathogen control was not on the radar.
• Where natural ventilation is used, it only specifies theoretical window opening, there is no requirement that windows ever be opened.
• It focuses on the initial design for the provision of outdoor air, but does not ensure that the air is actually clean or safe once the building is occupied.
• There is no requirement to test the ventilation, not even at the initial commissioning of the building, let alone years later.

Reading between the lines

Given the lack of relevant standards, the new Safe Work COP avoids referring to specific requirements for ventilation. It recommends “considering Air Changes per Hour (ACH) and says “Measuring a workspace’s ACH can help you determine how effective the ventilation in that space is.” Also, “CO2 levels, measured with a CO2 monitor, can indicate the presence of people and the adequacy of ventilation. Higher levels of CO2 can identify poorly ventilated areas with people present.” No guidance is offered at to what number of ACH or CO2 should be achieved. The closest they come to laying down the law is:

• The Code explicitly states that it “should be considered alongside other laws which apply to biological hazards and any existing detailed standards and guidance on specific matters relevant to your industry or workplace”.
• It notes that there may be “national or international standards and/or certification and accreditation standards which apply to your industry or workplace, such as standards for preventing and controlling infections…”.
• Crucially, it directs that “You must comply with any of these relevant laws and requirements, in addition to your WHS duties, where they are applicable. For example, complying with public health food safety laws or biosecurity containment requirements does not mean you are managing all the risks to health and safety for workers. You are still required to eliminate or minimise the health and safety risks from biological hazards at work under WHS laws. “

These warnings are significant, because it means that where there are industry best-practice recommendations, employers MUST follow them or risk serious penalties for not meeting their duty of care to workers and all other people in the workplace. In the case of healthcare facilities, there are published guidelines for ventilation, notably Australasian Health Facility Guidelines Part D Infection Prevention and Control April 2025 published by the Australasian Health Infrastructure Alliance. AHIA comprises representatives from government health infrastructure planning and delivery entities in all jurisdictions in Australia and New Zealand.

The ventilation section of the infection prevention and control section makes these recommendations:

1. First, split systems and natural ventilation are to be avoided. I note that these are widely used in NSW hospitals and aged care facilities, possibly the majority of accommodation.
2. Where mechanical ventilation is used: “The management of airflows and the creation of a turbulence-free environment are essential to the control of the spread of infection. The minimum standards for ventilation suggested in the ACSQHC (2022) states that minimum rates for ventilation in healthcare settings are:
   • At least six air changes per hour for standard rooms
   • At least twelve air changes per hour for rooms where patients are requiring airborne precautions or aerosol-generating procedures (AGP) are being performed
   • At least ten air changes per hour for dirty utility rooms for odour control.”
3. “Ideally, and where appropriate, this should be augmented with ASHRAE 241”

ASHRAE 241 is a standard developed in 2023 by the American Society of Heating, Refrigerating, and Air-Conditioning Engineers in response to the COVID-19 pandemic and aims to improve indoor air quality and public health by addressing the risks associated with infectious aerosols. It includes recommendations for ventilation rates, filtration, air cleaning technologies, and operational practices to reduce the concentration of airborne pathogens in indoor environments. Importantly, it requires facilities to have the ability to switch from a normal operating mode to emergency mode if an authority like the CDC declares an emergency.

Table 5-1 ASHRAE 241 sets out minimum Equivalent Clean Airflow per Person in Breathing Zone in emergency mode. ASHRAE 241 also sets out requirements for periodical testing and maintenance of system to ensure they are operating to the standard and capable of operating in emergency mode immediately if an emergency is declared. In Australia now, there is no requirement to test ventilation, ever.

No change without complaints

There are good, recent standards established by ASHRAE which the Australian Health Infrastructure Alliance recommended by adopted (just last year). The problem is widespread ignorance of these guidelines, no interest from the Health Department in following the guidelines and ignorance or avoidance by Safe Work.

It’s certainly not front-and-centre of the new Safe Work COP but Safe Work must ultimately accept that health facilities ignoring the guidelines are not doing everything reasonably practicable to make health workplaces safe.

It is rare for Safe Work to take the initiative and audit workplaces. They almost always act on complaints.

If anyone has a concern about poor ventilation in a health care facility, they can and should complain to SafeWork in their state. Taking CO2 readings which show CO2 above 800ppm and climbing should be enough to force Safe Work to take your complaint seriously.

It would also be worth complaining about poor ventilation in schools or other places where people gather, although this will be a tougher argument as the guidance is not so clear.

Peter Vogel
06/03/2026

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Online Safety Amendment (Social Media Minimum Age) Bill 2024

The law attempting to prevent children under 16 accessing social media was rushed through last night.

It does not impose any requirements on children or their parents. It requires the platforms to take reasonable steps to prevent children under 16 from having accounts.

It does not come into effect for at least 12 months and I predict it will never come into effect. It’s an empty gesture to win votes, by a government that stood by while vapes addicted a new generation to nicotine and gambling ads destroy adult lives while recruiting a new generation of gamblers.

The heart of the new law is the definition of which platforms it applies to:

63C Age‑restricted social media platform

(1) For the purposes of this Act, age‑restricted social media platform means:

(a) an electronic service that satisfies the following conditions:

• (i) the sole purpose, or a significant purpose, of the service is to enable online social interaction between 2 or more end‑users;
• (ii) the service allows end‑users to link to, or interact with, some or all of the other end‑users;
• (iii) the service allows end‑users to post material on the service;
• (iv) such other conditions (if any) as are set out in the legislative rules; or

It is certainly unclear whether communication apps like Facebook Messenger “allows end-users to post material on the service”. What is certain is that the platforms the Act will try to regulate are owned by the biggest businesses in the world and in practice have far more power than the Australian government.

The Greens valiantly moved this amendment to the motion to pass the bill:

At the end of the motion, add “, but the Senate notes that:
(a) the Joint Select Committee on Social Media and Australian Society heard from experts that banning young people from social media will not make platforms safer for anyone, and instead recommended tougher action on platforms including a legislated duty of care; and
(b) the attempt by Labor and the Liberals to ram this ban through without genuine scrutiny in under a week is rushed, reckless and ignores expert evidence”.

Peter Vogel, Solicitor,
29 Nov 2024

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The ‘Ruby Princess’ case and the future of COVID litigation

The “Plague cruise”

On 8 March 2020, the cruise ship Ruby Princess departed from Sydney for a 13-day cruise to New Zealand. COVID-19 had recently arrived in Australia and had started to spread.

Amongst the passengers were retired nurse Susan Karpik and her husband Henry, a retired police officer. Henry contracted COVID-19 and became very ill, given only a few days to live. Fortunately, he survived. Susan also contracted COVID but was not severely affected.

Susan Karpik was lead applicant in a class action against Carnival plc, charterer of the Ruby Princess which came to trial in 2023. [1] Mrs Karpik sought damages for personal injuries and distress and disappointment of more than $360,000.

The judge found that both Mr and Mrs Karpik’s COVID was ‘more likely than not’ contracted on the voyage. Mrs Karpik claimed Carnival had been negligent, they should have cancelled the cruise. While negligence is the usual cause of action in cases like this, the plaintiffs also advanced claims under the Australian Consumer Law (ACL).

Consumer Protection under the Australian Consumer Law

The ACL includes guarantees that services provided to a consumer must be reasonably fit for purpose and delivered with due care and skill. These guarantees cannot be excluded in a contract.

The ACL also prohibits misleading conduct, for example overstating the fuel economy of a car.

It is important to understand that these laws apply only to services supplied by a consumer in the course of trade or commerce, that is, services which a consumer pays for. They would not apply to a public hospital, for example, or someone providing a service voluntarily as a public service. They would not apply to a public school, but would apply to a private school, medical services you pay for, entertainment, shops, hairdressers etc.

The Ruby Princess case is significant because the Court upheld Susan Karpik’s claims that Carnival breached the consumer protection provisions of the ACL because:

• Carnival guaranteed that the cruise would be fit for the purpose of having a safe, relaxing holiday but the services were not of such a quality to achieve that result given the high risk of catching COVID and the poor safety measures enforced. Ideally, the cruise should have been cancelled.
• Carnival misled passengers by representing that it was safe to embark on the cruise, that they had protocols that would protect passengers, and that they would do everything reasonable to enable passengers to have a safe, relaxing and pleasurable cruise.

Accordingly, Susan Karpik and the other members of the class action were entitled to damages for “distress and disappointment”. Although the amount was small ($4,400 which was what she paid for the cruise) the principle is important – it was not necessary for her to produce medical experts to prove she had a physical or psychological injury, the ruined holiday and the distress of seeing her husband on life support was sufficient to warrant an award of damages.

Some highlights of the case

The Ruby Princess judgment includes some very detailed discussion about COVID risk mitigation. This was central to the question of whether Carnival had exercised due care and skill and done everything reasonable to fulfill their promise of a safe and enjoyable cruise.

The complete judgment (1,059 paragraphs) can be downloaded here: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2023/2023fca1280

The discussion of “Failure to implement reasonable precautions” starts at par [788], and includes:

• [792] Ironically, the Karpiks were most likely infected at the “safety muster” where 200 people were crammed together.
• [795] Temperature check screening would have reduced risk because at that time 80% of cases included fever.
• [797] Would physical distancing have further reduced risk? There is detailed discussion about aerosol vs droplet transmission, referencing Morawska et al. [801], evidence that “the fact that face mask directives have been more effective than either lockdowns or social distancing in controlling the spread of COVID-19 … is consistent with indoor airborne transmission as the primary driver of the global pandemic.”
• [806] Different concentrations of exhaled infection quanta when breathing, speaking and singing are plotted and discussed and cumulative exposure time vs risk with and without masks at [807].
• [810] “I have found that the respondents… ought to have limited the numbers of people within all parts of the ship so as to allow for physical distancing and closed such parts which could not permit it”
• [811] “Consistently with that evidence, I find that physical distancing was highly effective in preventing coronavirus transmission. Its effectiveness consists of two components. The first is that, if individuals had practised physical distancing as the respondents ought to have encouraged their passengers to do, it is highly unlikely that transmission would have occurred by respiratory droplet transmission. The second is that if capacity limits within indoor areas had been enforced so that the occupancy of those areas could accommodate physical distancing, which the respondents ought to have done, this measure would also have been effective in reducing aerosol transmission, although it would not have adequately made those areas safe for longer periods of time.”
• [819] “In the present case, Mrs Karpik submits that the circumstances are such as to support a finding on the balance of probabilities that if the respondents had introduced pre-embarkation health screening for all passengers and physical distancing measures, Mr Karpik would probably not have been infected with COVID-19. I accept that submission”
• [823]-[824] The judge concludes that if reasonable precautions had been taken, “the most probable result is that Mr Karpik would not have contracted COVID-19”.

Mrs Karpik claimed she suffered long covid following her mild infection [939]-[983]. This was the subject of extensive evidence and consideration concluding at [984] that the judge was not persuaded. This is an informative example of the Court’s approach to considering expert evidence of long covid.

Pointers for future litigation

The Ruby Princess case illustrates how consumer laws might be applicable to many situations where service providers are not taking due care to protect consumers from risk of contracting COVID or other infectious disease.

• Breach of consumer protection law is much easier to prove than negligence
• Action can be brought before anyone is actually injured, for example if a nursing home fails to provide reasonable protection making someone reluctant to engage in activities or causing distress
• It can be litigated in a State tribunal, where there is generally no risk of being ordered to pay the defendant’s legal costs of the claim fails
• Anyone who “has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention” can be jointly liable, which means that if a hospital or a school follows government advice and is found lacking, the people or departments responsible for the advice can be liable as accessories.
• This can be utilised in any situation where a service is being supplied to a consumer commercially – private schools, private hospitals, aged care facilities, doctors or other health services, even cinemas, restaurants or other retailers – where the provider is not taking reasonable steps to provide the service safely.

Peter Vogel, NSW Solicitor
8 May 2024

[1] KARPIK v CARNIVAL PLC (The Ruby PRINCESS) [2023] FCA 1280

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Qantas convicted of crime for standing down Health and Safety Representative

16 Nov 2023: NSW District Court Justice Russell found Qantas guilty of discriminating against a work health and safety representative who told co-workers not to clean planes from China the day after Australia closed its borders to such arrivals.

Qantas ground staff employee Mr Theo Seremetidis was a health and safety representative (HSR) at the start of the pandemic.

On 27th Jan 2020 some ground crew expressed concerns about cleaning a flight from China. Theo, as their safety representative, told them they have the right to refuse unsafe work. He asked Qantas what risk assessment had been done, and why they had not consulted with workers.

Qantas did not respond.

The next day, Qantas sent an email to staff, – excluding Theo – saying “Very low to zero risk of getting the virus. Not airborne. Masks and gloves not required. Best defence is usual hygiene rules – washing hands properly for 20 seconds”.

Qantas gave three staff who refused to clean a plane arriving from China a letter warning them they would be disciplined if they refused again, because “the risk of aircraft workers contracting Coronavirus as a result of working on aircraft is negligible”.

On the 1st Feb, the government announced a travel ban from mainland China. Theo also discovered a journal article that suggested coronavirus had been caught from asymptomatic people. Theo told his co-workers they did not have to clean planes from China if they felt it was unsafe.

The next day, a Qantas representative said to him “Theo, we’re standing you down today because you’re causing anxiety to workers because you’ve ceased unsafe work.”

The judge found no evidence that Theo was causing anxiety, and that “The reason for standing down Mr Seremetidis on 2 February 2020 was, as found and discussed above, because Mr Seremetidis gave directions under s 85 of the WHS Act for workers to cease unsafe work.”

Stop-work directions under s 85 must be “reasonable”. The judge said “I find that Mr Seremetidis held a concern which was reasonable that cleaning planes arriving from China posed a health risk to workers. From the perspective of an ordinary and reasonable person in the position of Mr Seremetidis, and taking into account the course of events up until 2 February 2020, his concern was neither fanciful, illogical or irrational. I find that it was reasonable. Thus, one of the elements for the exercise of a s 85 power has been established by the evidence” and “The step taken by the Federal Government on 1 February 2020 of closing Australia’s borders to one-fifth of the people on earth demonstrates that the risk posed by Coronavirus to those exposed to it was a serious risk.”

However, the Act requires the HSR to consult with the employer before issuing a stop-work order, and the judge found that Theo did not do this. Qantas had not stood Theo down because of this failing, “It was simply that he had in fact given the directions”. This was unlawful and “all of the elements of the charge have been established beyond a reasonable doubt.” The penalty will be decided at a Sentencing Hearing. The maximum penalty for a company is $634,700 and $127,050 for any person involved. The Court can also order Theo be paid compensation (any amount considered appropriate) or that his job be reinstated.

Summary by Peter Vogel, solicitor, 16 Nov 2023

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Refusal to grant “School pandemic leave” was unlawful discrimination: NSW Tribunal decision.

Fiona* lives with type 1 diabetes which puts her at elevated risk should she contract COVID-19. Her son attended a NSW primary school during 2020-2021. When schools returned to the classroom, she applied for leave keep her son home to avoid the risk of infection at school. The school refused, and eventually threatened to take Fiona to court if he did not return to school. Fiona claimed that the NSW Department of Education discriminated against her and her son by not allowing “home learning” even though her doctor provided a letter recommending her son not attend school while the risk of COVID-19 was high.

The claim of disability discrimination was initially dismissed by NCAT (NSW Consumer and Administrative Tribunal). Fiona appealed, and the decision was today overturned by the Appeal Panel.

The Appeal Panel agreed with Fiona’s submission that the Principal has a discretion to grant leave for any reason and the refusal to do so was discriminatory, particularly when the same Principal had granted leave to a child whose parent was undergoing chemotherapy. Fiona argued that:

(a) Whether the student was able to attend school or not is irrelevant. The issue is whether they could do so as safely as a child whose parent was not disabled. In this case, medical evidence and opinion was that the Appellant’s child was at higher risk of injuring his mother than other children whose mother was not a high risk.

(b) Making education available only if the child attended in person, when a viable, safer alternative was available and requested, is analogous to making education available only in classrooms that are not accessible by wheelchair. It would be no answer to a claim that such conduct was discriminatory to say “Neither the applicant nor child were denied the benefit of attending school” because children in wheelchairs could look in through a window.

The Appeal Panel agreed. They noted that “We find that Ms Parker [the Principal’s] state of mind was that whilst she was willing to readily approve the application for the parent undergoing chemotherapy ‘in order not to compromise the parents having no immune system operating’ she doubted that the Appellant’ s condition could be equally worthy ‘bearing in mind there were no cases in our community and at all through 2020’… We further find on the evidence that the different health conditions are not materially different in respect of their worthiness with respect to an application for flexible home learning services and exemption from attendance at school.”

The complaint was substantiated on all grounds and the Department of Education was ordered to pay FVN $15,000 compensation for hurt, distress, inconvenience and humiliation.

Full decision: FVN v Secretary, Department of Education [2023] NSWCATAP 301
Peter Vogel, Solicitor for SVN, 8 Nov 2023.
*Fiona is a pseudonym, for privacy reasons.

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Working from Home and the Fair Work Act.

The Fair Work Act was amended in 2023 to provide better flexible working arrangements:

• Eligible employees can request changes to their working arrangements
• Eligible employees include parents, carers, those with disabilities, over 55, experiencing family violence, or supporting someone experiencing family violence
• Employers can only refuse on reasonable business grounds

Merely being eligible does not mean your request has to be granted – you need to show that as well as being in one of the eligible categories, there is a good reason for the flexibility you request. For example, if you have caring responsibilities every second week, you cannot ask to work from home every week.

If you establish good reasons for the arrangement you want, the employer has to grant it unless they have “reasonable business grounds” for rejecting it. What exactly that means will become clearer as cases are brought before the Fair Work Commission.

So far there have been few cases published since these amendments. One recent case (Peter Ridings v FedEx) did consider “reasonable business grounds”. Ridings’ wife and children have disabilities and he wants to continue working from home as it enables him to care for them while doing his job. FedEx did not provide evidence of decreased productivity or efficiency when Ridings worked from home, nor did they raise any performance issues. FedEx’s reasons were too generic and not tailored to Ridings’ specific circumstances or request. They made general claims about in-person collaboration, interaction, knowledge sharing, training, support, and culture-building but did not convince the Commission that these were not possible under Ridings’ proposal or that they would occur even if he were in the office.

It is likely there are many situations where the benefit to the employee will not be outweighed by the detriment to the employer, especially if the employer refuses the request because it is against company policy. As noted in Ridings, “Generic and blanket HR answers are not sufficient alone to establish a reasonable business ground for refusing a request.”

Many employees that moved to WFH during the pandemic lockdowns want to maintain that arrangement. If they fall into one of the eligible categories under the FW Act, employers will need a better reason than filling empty seats or justifying their CBD office rent to overcome reasonable requests to continue a viable flexible arrangement.

Peter Vogel, 7th August 2024