Through our content moving forward, we want our local businesses to be able to relate to what we are saying. This one has a hospitality focus, but our other locals will get a focus later in the month.
From our discussions with local hospitality businesses, we understand there is growing anxiety in the lead-up to re-opening under the State Government’s current iteration of the proposed roadmap. On the one hand, re-opening is sorely needed, but on the other, there is confusion about discrimination, divisiveness, workplace relations and the negative exposure this might carry, both in terms of bad PR but also potential legal exposure. Many businesses are also concerned about the mechanics of policing vaccine passports or certificates, with the aftermath of turning unvaccinated customers away, and potential penalties for breaches, if only just because the regulations are confusing.
NSW Customer Service Minister – Victor Dominello, is currently managing the roll out of a COVID-19 Vaccine Passport that could potentially be in use in the next few weeks. Whether or not this will actually occur is anyone’s guess at this stage. The current talk is that the QR code check-in will soon be linked with a vaccination status, through the Service NSW app.
Dominello has also confirmed that businesses will not need to police the vaccine passport and to call the police on anyone who fails to use the QR check-in, or who enters premises without being vaccinated. However, there are potential penalties for failing to ensure customers do check-in. The maximum penalty for companies is 500 penalty units, or $55,000, and 250 penalty units, or $27,500 for each day the offence continues
To avoid any discrimination (and realistically, partially in protest), some businesses such as Rashays are not opening their doors to dine ins until the 1st of December – which is when unvaccinated residents are allowed to do so. However, that is not a commercial option for most, so it may simply be a matter of opening and monitoring check-ins. That is not the end of the matter though for workplace relations, dealing with heckling customers over the vaccination status of staff, or discrimination claims from unvaccinated patrons, which will still be concerns at least until 1 December 2021.
At present, there is no blanket law mandating vaccination for all hospitality staff. However, there are a myriad of applicable laws, including those relating to workplace health and safety, and the common law duties of employers and employees, which have a bearing on the issue. Examples include the common law duties of an employer to provide work; to act reasonably; to maintain mutual trust and confidence with staff; and a duty of care, which extends to ensuring the workplace is safe. Some of these are influenced also by workplace health and safety act and OHS regulations, and all of them will take on a different meaning depending on whether the employee is arguing for or against vaccinations, and of course the employer’s view. The issue, and the answer or solution, will vary on a case-by-case basis depending on the particular circumstances at play, but it appears all Courts and Tribunals and employment oversight bodies are adopting a balancing test following a risk assessment approach, so a form of educated self-regulation, but even the great disparity of views among judicial officers and commission members is rife, as highlighted by the strenuous dissenting judgment delivered over an unfair dismissal case this week brought by an ex-employee following dismissal for refusal to be vaccinated. Unfortunately, this is still being developed, given what appears to still be a case of conflicting laws and no one-size-fits-all application of any of them.
Anti-discrimination is another area where the situation is largely the same. For example, there are anti-discrimination laws that apply to both employees and patrons, which arguably prevent a venue from declining entry or service in the case of, relevantly, some particular political opinion. In some contexts, anti-discrimination claims are expressly excluded by other valid laws, such as a public health order in this case. However, the jury is still out on which law prevails, and in the case of public health orders, there are a number of challenges on foot to the validity of certain aspects of them, with one notable bunch of cases commencing trial in the NSW Supreme Court on 30 September 2021. The downside is, as with most such questions in this current mess, “it depends”, although the upside for this particular issue is that, at least where patrons are concerned, usually it is not worth them spending the money to bring any claim. That is not to say the larger venues do not have to worry about certain sleazy class action firms in the meantime though…
Ultimately, the safest way forward is to conduct a risk assessment of your business, both in terms of staffing requirements and issues, and patrons. The assessment should be based on the particular circumstances of your venue, its staff and patrons, right down to everything from the entrance to the premises, through to the methods of service. Following this, a HR policy for staff and an entry and service policy for patrons should be drafted, adopted, implemented and monitored as circumstances change, with some creative and bipartisan marketing or publication of that policy. Of course, it all should be vetted by your local community lawyers.
If you or someone you know, needs help navigating their business through these unprecedented or to better understand the legality of these circumstances, we encourage you to get in contact with our office.