By Robby Magyar
On 12 December 2021, WA Chief Health Officer Dr Andrew Robertson released the Critical Business Worker (Restrictions on Access) Directions (Directions), which sets out vaccination requirements and entry restrictions to accommodation, hospitality, retail service and distribution premises that have been identified as “critical business sites” for workers.
What do the Directions say?
The Directions provide that:
- From 1 January 2022, critical business workers cannot enter or remain at a critical business site unless they have been partially vaccinated against COVID-19 with one dose of a vaccine registered with the Therapeutic Goods Administration (TGA)
- Double-dose vaccinations are required in the same circumstances from 1 February 2022
- Individuals not working in any capacity as a critical business worker and persons exempt because of a medical or temporary exemption are not captured by these vaccination requirements
There are limited exceptions to these rules, including where a person is responding to an emergency or exercising any right of entry under permit under the Fair Work Act 2009 (Cth), the Work Health and Safety Act 2011 (Cth) or the Industrial Relations Act 1979 (WA).
The Direction also sets out the following requirements for collecting and storing vaccination information of employees:
- Critical business workers are required to provide proof of vaccination status for inspection, recording and retention to their employer or the person in charge of the critical business site the worker is working on;
- Employers, owners, occupiers, and persons apparently in charge of a critical business site must take all reasonable and lawful steps to collect and maintain a record of the vaccination status of all critical business workers. They also must only roster on and allow vaccinated workers (per the above requirements) to work;
- If an emergency officer or nominated officer requests evidence of a worker’s vaccination status, it must be provided as soon as is practicable;
- Vaccination status information must not be used or disclosed in any way other than to comply with the Directions, as permitted or required by law, or with the individual’s consent; and
- Employers must also protect the records they hold from misuse, loss, unauthorised access, modification, or disclosure.
Who is a Critical Business Worker?
The Directions provide that any person employed or otherwise engaged (whether in a paid, unpaid, or voluntary capacity) to provide goods and services within a critical business site is classified as a critical business worker under the Directions. This includes apprentices, cadets, trainees and individuals undertaking work experience or a placement within a critical business site.
Owners, occupiers, operators, and individuals in charge of critical business sites must also comply with the Directions if they are to remain on-site.
The following are defined as critical business sites:
- Accommodation premises including:
- A hotel, motel, or other accommodation facility to the extent that accommodation services are provided.
- Caravan parks and camping grounds, except any part of such premises which is a residential park.
- Hospitality premises whether for consumption on-site, takeaway meals or as part of meal delivery services including:
- Restaurants, cafés, pubs, bars, and clubs, whether licensed or unlicensed, not including nightclubs.
- Truckstops and roadhouses.
- Premises selling food in a food court, shopping centre or from a vehicle.
- Distilleries, breweries or wineries, to the extent that those premises are providing food.
- Retail, service or distribution premises including:
- Supermarkets, grocery stores, butchers, fruit and vegetable stores and fishmongers.
- Retail bakeries.
- Bulk food shops.
- Health food stores.
- Indoor and outdoor markets where vendors are providing groceries, meat, fruit, vegetables, fish, fresh or prepared foods.
- Banks, credit unions, building societies utilising a shopfront.
- Retail hardware stores.
- Food distribution centres (not including food manufacturers).
- Petrol stations, including but not limited to those that sell groceries and food.
- Veterinary clinics and hospitals.
- Venues where funerals, burials, cremations, or related activities are performed including funeral parlours and crematoriums.
If a worker is working not in a capacity as a critical business worker under the Directions or they are deemed an exempt person because of a medical or temporary exemption, the vaccination requirements in the Directions do not apply.
A medical exemption is defined as being a medical exemption recorded on the Australian Immunisation Register and displayed on the individual’s Immunisation History Statement.
A temporary exemption means an exemption approved by the Chief Health Officer or a person authorised by the Chief Health Officer for that purpose whether in relation to an individual or a class of persons and subject to any terms and conditions specified in that approval.
Critical business workers have until 1 January 2022 to be at least partially vaccinated against COVID-19 and must be fully vaccinated against COVID-19 by 1 February 2022, in order to enter or remain at a critical business site.
Businesses should take steps to ensure compliance with the Directions, including:
- Familiarising themselves with the requirements and definitions in the Directions;
- Notifying employees of the requirements contained in the Directions regarding vaccination requirements and evidence requirements;
- Engaging with employees to encourage compliance with the vaccination requirements;
- Requesting employees provide vaccination evidence as promptly as possible to avoid disruptions in their ability to perform work;
- Considering placing employees who are unvaccinated or have not provided vaccination evidence by the required date/s on a period of unpaid leave or by agreement, paid leave. Personal leave will generally not be available where the employee is not suffering from an illness or injury that renders them unfit for work; and
- In the event an employee refuses to comply with the Directions, seeking advice concerning the potential options available which may include but are not limited to ending the employment relationship.
In the case of a contractor, advice should be sought as to the rights and obligations of the parties arising from the terms of the contractor relationship.
Please note this article applies only to critical business sites and workers in Western Australia and should not be relied on for businesses in any other state of Australia. The information in this article is correct at the time of writing but is subject to change.
If this information has raised any questions or concerns, please contact the team at HR Assured – we’re always here to support you.
Clients of HR Assured can contact the 24/7 Telephone Advisory Service any time.
If your business is not an HR Assured client, we’d like to offer you a no-obligation, complimentary 30-minute consultation call. Employers can speak to our friendly workplace relations consultants and seek advice about this new legislation or an existing workplace issue. You can arrange your complimentary consultation here.
Robby Magyar is a Workplace Relations Consultant at FCB and HR Assured who relishes the opportunity to assist businesses in the best practice approach to managing employees and compliance concerns. He has a particular interest in making employment law and human resources digestible for our clients.