Article Category - Employment Law KS on Call By Angus Edwards 28 April 2020

The Morrison Government have now launched the COVIDSafe App to assist in contact tracing, should people test positive for COVID-19. 

There has been much discussion about the data security together with the need for at least 40% of the population to take up the App for there to be any reductions in the current restrictions.

But what has not been discussed are the traps and dangers for employers when it comes to the App.  Well-meaning employers may encourage the use of the App amongst customers and staff to try and get the restrictions lifted by the Government sooner, however, this goodwill could get them into trouble. 

The Government's Determination made under the Biosecurity Act requires that a person cannot require another to download the App, have the App in operation, or consent to uploading data from the app.

In addition, there are a number of significant restrictions that businesses ought to be aware of in their commercial and human resources dealings when it comes to the App.

Clause 9 of the Determination provides that a person must not:

  1. refuse to enter into, or continue, a contract or arrangement with another person (including a contract of employment); or
  2. take adverse action (within the meaning of the Fair Work Act 2009) against another person; or
  3. refuse to allow another person to enter premises; or
  4. refuse to allow another person to participate in an activity; or
  5. refuse to receive goods or services from another person; or
  6. refuse to provide goods or services to another person;
  7. on the ground that, or on grounds that include the ground that, the other person:
  8. has not downloaded COVIDSafe to a mobile telecommunications device; or
  9. does not have COVIDSafe in operation on a mobile telecommunications device; or
  10. has not consented to upload COVID app data from a mobile telecommunications device to the National COVIDSafe Data Store.

What does it mean for employers?

For employers, this means that anything beyond telling staff or customers about the App or encouraging it to be downloaded is problematic.  Even suggesting staff download the App would leave you open for an adverse action claim under the Fair Work Act, if you then stand down or terminate an employee, even for some other reason.

The employer has the onus of proof that the action was not taken due to not downloading the App, but this will require time, evidence and incur legal costs which can best be avoided by simply being silent when it comes to the App.  An employer would be in the same position if they refused to allow staff to attend their place of work unless they have the App.

In commercial dealings, you cannot refuse to contract with someone due to them not having the App downloaded or active.  Again our advice is that the App should simply not form part of any discussions or commercial dealings, so as to avoid any suggestion that it has formed part of the decision-making process if they are stood down, or terminated, even for some other reason. 

Shop owners cannot prevent entry to their premises to people who haven't downloaded the App, or refuse to serve them under the Determination.

For sporting clubs or community groups, they cannot prevent people from taking the field or participating if they do not have the App,

Our advice is simply to stay silent when it comes to the App.

If you have any questions, don't hesitate to get in touch with our team in Bathurst, Oberon, and Lithgow on 1800 650 656. We're here to help your business.

Angus Edwards | Principal