The government has today introduced its access directions, requiring vaccination for critical workers across a large range of industries. Our Employment Law team has put together a quick guide to those directions.
Which premises do these apply to?
Any critical business site, which means a “critical accommodation premises”, or a “critical hospitality premises”, or a “critical retail, service or distribution premises”.
A “critical accommodation premises” means:
- A hotel, motel, or other accommodation facility or premises to the extent that they provide accommodation services; or
- Caravan park or camping ground, but not including any part of a caravan park or camping ground which is a residential park
A “critical hospitality premises” means:
- a restaurant, café, pub, bar or club (not including nightclubs) whether licensed or unlicensed including premises selling food in a food court, shopping centre, or from a vehicle whether for consumption on site, takeaway meals or a meal delivery service;
- a truckstop or roadhouse; or
- a distillery, brewery or winery, but only to the extent that those premises are used for the providing of food for consumption on site, takeaway meals or a meal delivery service.
A “critical retail, service or distribution premises” means:
- a supermarket, grocery store, butcher, fruit and vegetable store or fishmonger; or
- a retail baker; or
- a bulk food shop; or
- a health food shops; or
- a permanent fixture indoor or outdoor market but only to the extent that they are providing groceries, meat, fruit, vegetables, fish, fresh or prepared food; or
- a bank or credit union or building society but only to the extent that the premises consist of a shopfront; or
- a retail hardware store; or
- a food distribution centre excluding food manufacturers; or
- a petrol station including but not limited to a petrol station that sells groceries or food; or
- a veterinary clinic or veterinary hospital; or
- a place where funerals, burials, cremations or related activities are performed, including funeral parlours and crematoriums.
Who is covered by the directions?
Any critical business worker, which means:
- a person who is employed or otherwise engaged to carry out activities or provide goods or services at a critical business site, including as a contractor or subcontractor,
- a person who is an apprentice or cadet or trainee or on work experience or a placement at a critical business site, and
- a person who is the owner, occupier, operator or person apparently in charge of a critical business site.
Who is excluded from the directions?
Visitors, guests or patrons of the premises.
Critical business workers attending a critical business site solely in a capacity other than as a critical business worker.
Those who provide “ad hoc” services, including tradespeople or delivery drivers, provided that person does not need to approach within 1.5m of a critical business worker or attends more than one critical business site in a week (or more than once a week).
Those performing law enforcement, Fair Work or WHS functions or responding to an emergency where a vaccinated person is not available.
Other directions may apply to these people, so it is important to seek specific advice on your circumstances.
What are the relevant deadlines?
The deadline for the first dose vaccination is 12:01 am on 1 January 2022.
The deadline for the second dose vaccination is 12:01 am on 1 February 2022.
What exemptions apply?
As with other directions, medical exemptions and temporary exemptions are available.
What records are required?
The employer or owner, occupier, or person apparently in charge of a critical business site must keep a record of the vaccination status of each critical business worker.
What are the penalties for non-compliance?
Penalties for being on a site (or allowing another to be on site if you are in charge of a site) in breach of the directions are a fine up to $20,000 for individuals and $100,000 for companies.
A failure to keep adequate records or produce them to officials on request will also attract those same fines.
What else should employers be thinking about?
It is important to check any contracts you have with suppliers, customers, and clients to ensure that you remain compliant not only with the government directions but also with higher obligations put in place by those contracts.
If you are covered by the directions and have workers who do not wish to be vaccinated or do not provide evidence of vaccination or a valid exemption, it is likely that you will be able to lawfully terminate their employment. The usual employment law principles apply in these circumstances, which require an employee to be given adequate notice of the issue (that they cannot access worksites to undertake their work), reasonable time to respond and/or address the issue and notice that their failure to do so will result in termination of their employment. When terminating employees, you should be careful to ensure that the reasons for termination are not protected characteristics or otherwise discriminatory.