The Covid Vaccine & your Business

asked facebook live for the year of 2021 and as i think most of us would um realize 2021 has just disappeared in a flash anyway so what we thought we would undertake today is a bit of a overview update on october 19. somewhat to try and cover some of the issues that um people have life questions about so before i launch into that the usual disclaimer the information contained in this presentation is provided for informational purposes only and should not be construed as legal advice on any matter right that's the disclaimer out of the way so who is baileywick baileywick legal we are specialists engaged in both agribusiness and tourism uh they are the industries that we focus on within those industries we undertake a range of legal issues from commercial contracts to litigation to transactional contracts employment estate planning business succession business sales property um and the like so what a lot of people don't understand necessarily is that whilst we say agribusiness and tourism the legal issues predominantly are much the same as any other industry obviously the specialization is understanding and having knowledge in the specific industry you're dealing in so i've spent um this is 21 years now within agriculture in law and absolutely love it um and it's the reason why we we've specialized so enough about me covert 19. i'm going to try it's not easy as we'll go through and you'll find out but today i will try to bring the covert situation down to the business and what the business can do or should be doing or maybe doing or may not wish to do in relation to people who come to you right and so from a tourism perspective um obviously tourism operators have what i'll call patrons um they're not employees of the tourism operator they are people who are coming to enjoy the tour what are the issues around the requirement to vaccinate for those particular people and we i say that in the sense that the current requirements for vaccination um in a mandatory sense as issued by the government um only target workers employees and that's quite a significant issue and a distinction so i've touched on there the issue of who is responsible if you like for issuing a vaccination mandate now uh i guess the question there and maybe the comment there is that use of the word responsible is perhaps a misnomer i don't know that anyone particularly is responsible for issuing a mandate what we have at least in australia is a situation where the governments have taken what i'll say is a leading role in respect to mandates and vaccination um and to try and guide the community um us to certain levels of vaccination so that um from a government perspective at least and economically we can operate as if there was no pandemic in the sense that we'll open our borders open our businesses and conduct transactions and go on with life as we would have before covert 19. perhaps a utopian view in the circumstances but i have no doubt that governments are extremely conscious of the need to keep the economy both commonwealth and states running at the highest levels possible i think from a social perspective it's important that business continues okay so in the sense of wa we'll look at wa who's issuing the mandates well as i said that's that's the state government on a state level it is the state government that is issuing mandates those mandates are being issued uh pursuant to uh two pieces of legislation primarily the public health act and the emergency services act and the mandates flow pursuant to that legislation as directions i'm pretty sure all the directions are issued by the chief health officer of the state who has powers to issue those directions pursuant to the public health act and the emergency services act and just to complete that circle the state has issued declarations under both acts so there is a state of emergency decoration and there is a public health declaration those declarations have been renewed and continued on a regular basis i think since about march last year so perhaps one of the issues of misinformation that is alive is that the commonwealth is driving the whole covert response and mandatory vaccination process that is as i said a piece of misinformation the states are driving the mandatory requirement the only thing the commonwealth has done by way of mandatory uh vaccination is to i think issue declaration within the aged care sector that workers need to be vaccinated in that sector that's the only mandatory process that the commonwealth has instituted and i think that was done in august or september of this year um so as i said other than that it's the state government that's driving the show of course um as i've said in perhaps one or two prior facebook live sessions employers can issue policies um and directions with respect to their staff in the context of vaccination and employees can do that irrespective of what the state does so any employer within any industry has the ability to introduce a policy or or provide a direction to the businesses employees that they need to be vaccinated now there are some obviously particular rules around that which we don't necessarily need to go in for today's purpose i've actually covered those types of issues in prior sessions and it's not really the focus today the focus today is business and the issues for staff and for people that might want to enter your premises if you're a service industry such as a hotel or a restaurant cbh as another example where people particularly at the moment are delivering their grain to the wheat pins and so does a business um a can of business should a business uh introduce some sort of policy or condition of entry in relation to let's just say visitors to their premises and we're not talking about employees so the simple answer is the same as employers is yes a business can do that there is absolutely nothing preventing a business from introducing a requirement for anyone who wishes to enter their premises to be vaccinated there are some um some matters that the business needs to consider in the context of introducing that type of condition and that is you know the privacy concern so a lot of businesses typically will be covered by privacy legislation under the commonwealth um and the privacy principles will likely apply so the collection of private information is an issue that would need to be reviewed and dealt with and addressed and similarly and we talked about this before is issues of discrimination um pregnancy impairment uh religious reasons you know so there's a raft of um reasons why why i guess circumstances where a business cannot discriminate against someone in relation to the services they're providing so to stop someone actually accessing those services um let's just use pregnancy as an example if if you've got someone who's pregnant you require them to be vaccinated before they come onto site whilst that might be indirect discrimination um to the pregnant person it still might fall within the bounds of discrimination so you you just need to be conscious that you might not be able to apply that policy on a blanket basis at the very least if you're going to do this get advice about these types of issues that you would need to consider in the discrimination context there is a defense of reasonableness so if if what you're seeking to introduce by way of condition is reasonable in all the circumstances well then you may be able to directly or indirectly discriminate on some grounds i'm just going to flip back to the warning i gave you earlier what i'm saying here is not legal advice and if you want to be introducing this type of condition absolutely get some advice before you do so all right and so when i was preparing for this um this morning i did a bit of a search through the internet to see who else is introduced well what businesses i should say what businesses have introduced um this sort of criteria of um people entering their sites and the the most obvious one which um hit the headlines last week was cbh cbh um i think is introducing a blanket condition i think it's from one january next year that if you've not vaccinated you're not going to be allowed on site now that's been put into the press last week um i'm working on a theory that cbh has obtained relevant information and advice in relation to that condition of entry my concern in relation to that is where the cbh has the right to ban its members from the facilities that the members own i'm assuming again that cbh is sorted through that particular question and has been able to introduce this condition nonetheless so that's just one of the issues that arise in relation to that particular condition um a few other companies that have introduced this this condition of entry is telstra telstra are going to introduce this i think again from uh one sure it might be actually this month middle of this month and it's going to do that in relation to frontline staff those staff that would be in the public domain are more susceptible to catching um the covert disease because of their level of interaction with the public another one is qantas now it's not necessarily as far as i can tell at least it's not necessarily um where you might be going into some travel agency to book a flight with concerts qantas has come out and said well for international passages passengers um we're not going to fly you unless you've been vaccinated now that's what they've said in the press i don't know at this stage whether they've actually introduced that policy i'm not quite sure how many states actually are open to international travel now anyway so that one is going to be an interesting one to watch but i think it's foreseeable um in the context of how the state and perhaps i could go so far as to say the community generally are dealing with this covert situation that i think it's foreseeable that more and more businesses will be taking measures to limit exposure to the disease within their workforce certainly but also within their work site all right just to flip it a little bit here next month we are being told that the new work health and safety laws will be um will come into force in in wa and those laws will apply to every person that comes onto a work site so it's it's gone well beyond uh the the confines of being limited to simply employees and it will apply to everyone that comes on to that work site and so your businesses um worksite if you like a cbh for example again their work site's going to be all their receivable points and so as of next month they their obligation to look after everyone on that site from a health and safety perspective becomes real and enforceable and that might be one of the other basis for the introduction of the condition of entry that it it has so next question is what is the mandate um and that's an interesting one from the point of view of of what the state government has done i think for probably roughly the last six weeks or so it's it's issued a vaccination mandate policy and um i've been thinking about this again this morning when putting some notes together for today's live session what does that actually mean my original thought was well it's all in the word the word policy and it was really okay well this is where the state government wants you to go the the mandatory vaccination policy is not a mandatory vaccination direction it's a policy it's a guideline as to where the government actually wants you to go and i i think um i sort of departed from that view and thought well maybe maybe the policy because it was in written form and available on the net um was the manifestation of the oral direction given i'm starting to waver on that now i think maybe it's more that that is an overarching policy and when we look at what the state has done with respect to group one it's actually issued specific industry mandates dealing with a raft of industry and business types within group one now the other reason i think it might be policy and and the specific industry mandates then are what you need to abide by is that on today i think today or yesterday um the government issued a another direction specifically for christian critical business workers which is the first mandate it's issued within group two and so that critical business worker direction and it is worker that's right so you know for those businesses covered within group two um and covered by this direction it deals with workers it doesn't deal with conditions of entry to your site it doesn't deal with that visitor context so some of the business types i think covered by this critical business worker direction are caravan parks hotels motels restaurants cafes supermarkets hardware store petrol stations right so we have a situation where these um this mandatory vaccination direction now is starting to further pervade um normal life all right and when i say normal life i say well you know the normal life is people going to hotels motels restaurants supermarkets hardware stores everyone's down at bunnings on a weekend and of course a petrol station you've got to fill your car up so the issue as i mentioned though here is that the direction is for workers and in the context of workers again you have a choice a worker doesn't have to you know he's not being forced to vaccinate when i talk about misinformation that's something here again the directions really are that no one shall be allowed to work unless they're vaccinated so the direction is not to get vaccinated the direction is that well you just can't work if you're not um and so the employee the worker still has a choice all right i'm just going to read from the direction that was issued yesterday and so uh paragraph 4a on and from 1201 am on 1 january 2022 a person who is a critical business worker must not enter or remain at a critical business site if the critical business worker has not been partially vaccinated right so in the context of a due to jab vaccination regime you've got to have your first one by that date so that's not saying the employee the worker must be vaccinated that's just saying well they just can't enter and remain out of place all right so if we look at supermarkets a worker employed by kohl's or woolies or iga or um what's that other one around at the moment the european one what's that one laura i forgot what it is good different who's that different who good different anyway you'll know the brand i'm talking about anyway so um a worker in that environment is just simply not able to enter or remain at their workstation unless they have at one january that first chat so it's not saying get it it's not saying you have to have it it's just saying if you want to be in that environment you need to have it and so the governments both federal and state i think have been pretty resilient on this message that they're not forcing you to have a vaccination they would absolutely like you to have the vaccination to get the community level at a particular percentile so that we can open the borders and carry on life as we know it as it used to be but they're not saying you must be vaccinated a fairly um substantive distinction there right but as i said this is a direction in the context of workers it's not a direction in the context of you know a condition for access to the site by others so talking about supermarkets again um you know i could go to a supermarket buy all my goods and not have to be vaccinated because i'm not an employee there i'm not a worker engaged by that supermarket and that i think is a point of discussion i know i've had this discussion with very many people well it's all good and well to say your employees need to be vaccinated but when you have people coming to your shop who aren't what's the go there right i've got no answer for that i really don't there is clearly a distinction between visitors and workers in that sense and perhaps and i you know this is how i rationalize that as an issue in that from a government's perspective from a policy environment the government's wanting everyone to be vaccinated it's concentrating on workers at this stage and i i think that's an underlying theory here is that well most of us work and most of the people within the community have a job all right and even if it's only part-time or casual it's a job and for the person to be able to continue with that work they're going to have to be vaccinated at some point in time therefore you work on the presumption that anyone coming into your shop into your supermarket is more than likely going to be vaccinated because they will be working somewhere else so um that's how i rationalize it i could be right it could be wrong i'm not sure that there is a right or wrong but anyway right okay so you're owning a supermarket um or you're down on the farm you've got a contractor coming in and they're not vaccinated what can you do about it well on the face of it nothing there's nothing to prevent that unvaccinated person from attending on your farm all right or if you're a tourism operator for attending your tour nothing you might wish to or you might think you should or you might not be bothered about introducing a condition of entry to your farm or tour for a person to be vaccinated as i said you certainly have the right to introduce that type of condition so long as you've covered off on the issues of privacy and discrimination and any other potential impediment to the introduction to that condition of entry but once you've developed and if you have implemented that condition of entry the best thing for you to do is actually enforce it and i know enforcement in the context of policies and conditions uh sometimes is sort of um left wavering uh in these circumstances though i think if you're going to introduce that condition of entry you've made a definitive decision about obligations to vaccinate and i think if you then fail to enforce that you're probably letting yourself down as well as everyone else in that context all right so um there's no rule or mandate at the moment that requires someone visiting your site or your farm or being on your tour to to be vaccinated that may certainly come in time but at this stage there isn't if you want to introduce that type of condition of entry um go through the right processes and as i said it would be worth your while to ensure you enforce it um in the sense of consultation um this sort of more pervades the employee employer relationship at this stage so i'm not really going to cover that if you um you know running your business from a particular work site irrespective of whether you own that site or releasing that site um you make the rules in this with respect to conditions for entry to that site by at large and in in the sense of this consultation issue you don't necessarily need to consult anyone who would you consult a potential person that might come to your site um that sort of issue is a bit of a nonsense at the moment um in the context of this particular issue i've done some work for tourism wa at surrey tourism council and um the the the the reality is that you can introduce this condition of entry poll policy or condition of entry term um you don't need to consult anyone necessarily but you do need to be wary of some of the legal issues around privacy and discrimination particularly all right um coming towards the end of today's session um how do you get it your head around the continuing changing rules uh in relation to covert the simple answer is it's not easy um and whilst there appears to be a plethora of information out there available to you you just google cover 19 on the website any question like you like and you'll come up with lots of hits perhaps what i find particularly frustrating is that the government the state government has a dedicated covert 19 website unfortunately my perception it looks like there's more information about covert 19 on the health department website and so we we've obviously got two centers within the state that are sort of dealing with different things now there's a link from the health department website to the covert 19 website but as i said it seems to me that the better and more full information is on the health department website so i can understand this concept that it's hard to understand um the rules as they continue to change and maybe maybe the state government needs to do a bit more on its communication strategy all right so you've introduced this condition of entry you've you're in category two you've just been given a mandatory mandate about your vaccination mandate about your sorry mandatory vaccination direction about your workers what if you don't comply and what if you find out what if you know of someone who isn't complying really good questions in the sense of where all this is going and your rights and obligations um the reality is there's very sparse information if any at all about the answers to these questions right so all right well you if you found someone who's meant to have complied let's say within the group one industry so they should have had their job by one december but they haven't and the employer is doing nothing nothing about that what do you do can you report it to someone my guess is yes you probably can report it too one assumes perhaps the chief health officer or the chief health officers department or or contact i don't know who that is by the way but i think that's probably someone you can report it to and the same question arises there is the same as the question of who's undertaking the audit all right well who's actually out there checking to see whether a business has enforced the vaccination requirement and again um in my notes this morning i've just said no idea i have no idea who's going to be auditing these mandatory vaccination directions within industry no idea whatsoever will it be the police possibly will it be some person nominated by the chief health officer possibly will it be someone from worksafe possibly just don't know and i've not read anything from the government at least to identify who these mystical people might be i'm hoping that at some point in the not too distant future we'll have an answer but what we do know what we can tell you is that the mandatory vaccination directions can be enforced by the chief health officer or that's the person who makes these directions or the person appointed by the chief health officer to undertake that enforcement process now that's that that process is enshrined within the public health act and the emergency services act so we know that they can be enforced um we just don't know how that whole process is going to be audited and possibly enforced the other thing we do know is that the these directions contain um notice of the penalties involved right so it's an offense for a person to fail without reasonable excuse to comply with any of these directions punishable by a fine of up to twenty thousand dollars for an individual and one hundred thousand dollars for bodies corporate so um they're not necessarily super high uh fines but um they're not insignificant either um and so i i think the cautionary approach and as a lawyer i'll have to tell you what the cautionary approach is it's basically comply the mandatory vaccination direction has been reduced to writing for all intents and purposes it's legal and valid i haven't undertaken assessment as to the validity of the direction i know there is a case over east where um the directions are subject to judicial review i think that's in new south wales i don't know where that case is finished up at this stage though so i think though from a cautionary perspective and working from the policy direction the state has has given us um it's probably um going to be better um where people comply rather than not why take the risk of getting a fine when compliance is reasonably straightforward you know what you need to do so i'm hoping that sort of covers off on the questions some of the sort of questions that have certainly been in my mind in relation to the mandatory vaccine directions and issues and perhaps those areas which haven't been touched upon such as um you know the visitor entry to your business rather than the emphasis where these directions go to your workers so um i'm going to leave it there and i'm going to wish you all a merry christmas and new year and look forward to catching up with you in 2022 haven't decided yet when the first live will happen but i suspect probably february if you have any questions in relation to what we've discussed today um and or wish to catch up with me on any issue um within agriculture or tourism um we have experienced personnel who can attend to that including myself um and we're happy to give have a chat with you to see if we can assist you in that context okay keep safe and well thank you

2021-12-09 23:49

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