The COVID-19 pandemic has countries around the world taking extraordinary measures to protect the safety of their citizens. The rights of the individual versus the rights of the collective is an ancient balancing act governments and law repeatedly confront.
While the Federal Government has made use of the COVIDSafe App voluntary, is there any legal authority for employers to require employees to use the app or for business owners to expect their customers to have it?
The Australian Government has legislated the Privacy Amendment (Public Health Contact Information) Act 2020 (Cth) (the Act) and produced the COVIDSafe App (the App).
The Act dictates what a person and a business can and cannot do concerning the App. To assist people in avoiding inadvertent breaches of the Act, we have addressed some likely questions that businesses might have.
Can I require my staff or employees to download the COVIDSafe App?
No. An employer cannot require an employee to download and install the App. It is also an offence to take adverse action against an employee or prospective employee (such as terminating their employment) because the employee has not downloaded, installed or registered their use of the App.
Example: An accounting firm cannot request an employee to download the App and threaten dismissal on the grounds that they did not download the App.
Can I refuse entry into my business if a person does not have the COVIDSafe App?
No. It is an offence to discriminate against a person who does not have the App downloaded and installed or does not have the App operating. If a person is refused entry into a premises open to the public (or that the person otherwise has a right to enter), then an offence will be committed.
Example: A clothing store cannot request that their customers show the App on their phone to be allowed to shop in their store.
Can I ask a person to show that they have the COVIDSafe App before providing them with goods or services?
No. A person cannot be refused your goods or services because they have not downloaded, installed or registered to use the App.
Example: A Café employee cannot request that their patrons show the App downloaded on their phone in order to be served coffee.
Penalties under the Act
Offences under the Act have a maximum penalty of 5 years imprisonment and a fine of $63,000.00 per offence. Offences against the Act may be charged and sentenced in addition to any other charge, penalty, payment of damages or settlement determined under the Fair Work Act 2009 (Cth).
Please contact our Workplace Law or Commercial + Property Law Team if you require further information in relation to re-commencing trade during the COVID-19 pandemic period.
Minimum wage increase from 1 July 2020