As restrictions around our mobility start to ease, we will likely see more and more employees return to the workplace. At the same time, the Federal Government is encouraging us all to download the tracing application "COVIDSafe".
While it may seem logical that employers have their employees download "COVIDSafe" as they return to workplaces, a determination made by the Health Minister under the Biosecurity Act 2015 (Cth) makes it clear that employers cannot "require" employees to:
- download COVIDSafe; or
- have COVIDSafe in operation on a mobile telecommunications device; or
- consent to uploading COVID app data from a mobile telecommunications device to the National COVIDSafe Data Store.
Further, an employer must not:
- refuse to enter into, or continue, a contract or arrangement with another person (including a contract of employment); or
- take "adverse action" (as defined by the Fair Work Act 2009 (Cth)) against another person; or
- refuse to allow another person to enter premises; or
- refuse to allow another person to participate in an activity; or
- refuse to receive goods or services from another person; or
- refuse to provide goods or services to another person;
on the ground that, or on grounds that include the ground that, the other person:
- has not downloaded COVIDSafe; or
- does not have COVIDSafe in operation on a mobile telecommunications device; or
- consent to uploading COVID app data from a mobile telecommunications device to the National COVIDSafe Data Store.
If a person does not comply with the determination, they will commit an offence that is punishable by imprisonment for 5 years or 300 penalty units ($63,000), or both.
What does this mean?
For employers, this means that you can encourage employees to download or use COVIDSafe but cannot require employees to download or use COVIDSafe.
In respect of "adverse action", this means that an employer cannot engage in actions such as terminating an employee's employment, demoting an employee and taking disciplinary action against an employee because an employee does not download or use the COVIDSafe application.
Reliance on a refusal to download or use COVIDSafe as a reason for termination of employment could also give rise to a claim for unfair dismissal (on the basis that there is not a valid reason for termination of employment).
If you would like to discuss this further and the implications for your business please contact our Employment + Workplace Relations Partner, Erin Lynch.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.