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1.        NEW CLOSE CONTACT, CASUAL CONTACT AND ISOLATION RULES

1.1      Overview

1.1.1       Businesses will no longer be hit hard with a business-wide lock-out if one worker tests positive. Only very close contacts of that person will have to isolate and get tested.

1.1.2       Mask-wearing becomes more important than ever because mask-wearing can make the difference between a person being a close contact or not.

1.2      Casual Contacts no Longer have to Isolate and be Tested

A “casual contact” was a person who was in an exposure site at the same time as a COVID-positive person. These people no longer have to isolate at home and be tested from 8 February 2022. However, casual contacts are advised to look for symptoms and get a PCR test as a precaution.

1.3      Close Contacts

1.3.1       A “close contact now has to be extremely close before the testing and isolation protocols apply. A “close contact” is:

(a)           a household member, or intimate partner, of a person with COVID-19, who has had contact with them during their infectious period; or

(b)          someone who has:

(i)            had close personal interaction with a person with COVID-19 during their infectious period; AND

(ii)           spent at least 15 minutes in face to face contact, where a mask was not worn by either person;

(c)           someone who has spent more than two hours in a small indoor space, or a classroom, with a person with COVID‑19 during their infectious period, where both persons have removed their mask for some of that period, e.g. for drinking a coffee, but not necessarily have both removed their masks at the same time; or

(d)          someone who is directed by WA Health that they are a close contact.

1.3.2       In the case of a direction from WA Health, that may arrive by text message or notification on the ServiceWA App.

1.4      Testing & Isolation

1.4.1       Close contacts must:

(a)           self-isolate for seven days from the date of contact with the person with COVID-19;

(b)          if already symptomatic, i.e. fever, runny nose, fatigue, sore/scratchy throat, dry cough or shortness of breath, or if the close contact becomes, symptomatic:

(i)            take a Polymerase Chain Reaction Test (PCR Test), or rapid antigen test (RAT), as soon as possible, and if positive, see 1.4.2;

(ii)           if negative, test again 24 hours later, and if positive, see 1.4.2;

(iii)          if negative, AND no new household members have tested positive, take a RAT on day 7, and if negative, self-isolation ceases; and

(iv)          if a new household member tests positive, the close contact regime restarts.

1.4.2       Positive Cases must:

(a)           self-isolate for a minimum of seven days;

(b)          at Day 7:

(i)            if symptoms still present, continue isolating until symptoms clear; and/or

(ii)           once there are no symptoms, you can leave self-isolation, with no further testing required;

and

(c)           if the positive result was from a RAT, you must register at www.healthywa.wa.gov.au/ratregister or phone 13 COVID (13 26843).

1.4.3       If you become symptomatic:

(a)           get a PCR test as soon as possible, or a RAT if no PCR test is available;

(b)          isolate until the result is received;

(c)           if positive, see 1.4.2; and

(d)          if negative, you can leave isolation, but take precautions.

1.5      Penalties

The direction here states: “It may be an offence not to comply with any of these directions, punishable by imprisonment for up to 12 months or a fine of up to $50,000 or $250,000 for a body corporate!

2.        VOLUNTARY VACCINATION MANDATES FOR BUSINESSES – WHY AND HOW …

2.1      THE WHY – Employer Obligations, Responsibilities, and Self-Interest

Most workers must be double-vaccinated to work in WA and breaching a Government mandate results in fines for both employers and employees. Most affected industries are on top of the requirements, but see section 3 below for more information.

Businesses not caught by the Government mandates, may require voluntary vaccination mandates in the workplace to:

(a)           ensure that they are taking reasonable precautions to protect their employees, contractors, customers, and clients;

(b)           minimise their exposure to such things as worker’s compensation claims, negligence claims, and prosecution by Worksafe WA; and

(c)           avoid having large numbers of staff self-isolating due to being close contacts of COVID patients, like some businesses in the Eastern States which have had up to 20% of their workforce unavailable to work.

COVID is spreading in the WA community and will get worse before it gets better. The time to act is now.

2.2      The HOW – Lawful and Reasonable Directions to be Fully-Vaccinated

Government mandates just need to be pointed out to the staff and contractors, if they apply.

Ditto for contract terms that state that the business can impose vaccination requirements.

In the absence of applicable mandates or contract terms, a business can make a direction that all staff and contractors, customers and clients attending the business premises must be vaccinated, PROVIDED it is lawful and reasonable.

In December 2021, the full bench of the Fair Work Commission, in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059 (3 December 2021) held that, while a vaccination requirement is prima facie lawful, BHP’s actions in standing down workers unable to provide evidence of their vaccination status were not lawful or reasonable as the company did not consult adequately with its workers, pursuant to its consultation obligations in the relevant EBA.

The main principles from that case are that a direction to vaccinate will be lawful and reasonable if:

(a)           it is directed at ensuring the health and safety of workers;

(b)          it has a logical and understandable basis;

(c)           it is a reasonably proportionate response to the risk created by COVID-19;

(d)          it was developed having regard to the circumstances at the business, including whether personnel could work from home and the extent to which workers come into contact with other workers, customers and clients whilst at work;

(e)           the timing for commencement is determined by reference to circumstances pertaining to the areas in which the business premises are situated;

(f)            considerable time is spent encouraging vaccination and consulting with staff and contractors; and

(g)           reasonable notice is given of the requirement to vaccinate.

2.3      Some examples:

Given that all workers in the businesses in Group 3 in section 3 below, are required to be vaccinated in the event of a lock-down or similar direction, it is more than likely those businesses could pre-empt such a direction and require their workers to vaccinate now.

If workers are required to interact with:

(a)           people with an increased risk of being infected with coronavirus; or

(b)          people who are particularly vulnerable to the health impacts of coronavirus; or

(c)           fellow workers, customers, clients, and/or the general public,

… a mandatory vaccination policy is more likely to be reasonable. Note that shared bathroom and kitchen facilities will increase the risk of transmission.

A vaccination direction given to workers who have next-to-no interaction with colleagues, clients, customers, and/or the general public, because they work from home, may not be reasonable.

My office has immune compromised staff and a lady who is pregnant. After consulting with staff, we implemented a policy requiring:

(a)           all staff to be fully vaccinated, including having a booster jab within a month of becoming eligible; and

(b)          all visitors to the office to be fully-vaccinated.

2.4      Disciplinary Action

If the direction is lawful and reasonable, failure to comply with the direction by a worker can be a ground for instant dismissal, though there will be exceptions to the rule. No disciplinary action should be taken without first giving the worker the opportunity to explain themselves nor without considering:

(a)           vaccine availability;

(b)          the length of notice given in relation to the direction;

(c)           risk, bearing in mind:

(i)            the nature of each workplace;

(ii)           duties and risks associated with their work and the ability to work from home pending becoming fully-vaccinated;

(iii)          work health and safety obligations to other staff members; and

(iv)          the extent of community transmission of COVID-19 in the location where the direction is to be given;

and

(d)          any other particular relevant circumstances of the worker and the business.

We have already had two clients who have had to take disciplinary action:

(a)           One client needed reassurance that she could cease providing work to a contractor who had been providing face to face services at another allied health clinic, contrary to the Government mandate that all allied health workers are required to be fully vaccinated. We gave that reassurance.

(b)          Another client had introduced a vaccination policy 4 months prior, with a deadline of full vaccination by 4 February 2022. Only one employee failed to get fully-vaccinated. This one employee had been making excuses – “I’m waiting for Pfizer”, “I’m waiting for Moderna” then “I’m waiting for Novovax”. Then the employee advised “My body, my choice”. That was the last straw for the employer, but the employee was stood down and advised that if she agreed to get her first jab before 4 February 2022 and a second as soon as possible thereafter, her employment could continue, but otherwise she was given notice of termination.

2.5      CMFEU v Mt. Arthur Coal in More Detail …

As mentioned above, the full bench of the Fair Work Commission, in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059 (3 December 2021) held that, while a vaccination requirement is prima facie lawful, BHP’s actions in standing down workers unable to provide evidence of their vaccination status were not lawful or reasonable as the company did not consult adequately with its workers. The Commission stated:

“If the object and purpose of such a direction is to protect the health and safety at work of employees and other persons frequenting the premises then such a direction is likely to be lawful. This is so because it falls within the scope of the employment and there is nothing illegal or unlawful about becoming vaccinated.  But such a direction must also be reasonable.”

“[W]hether an employer direction is lawful and reasonable can only be made by reference to the subject matter and context; it cannot be made ‘in vacuo’.”

“The assessment of reasonableness and proportionality is essentially one of fact and balance and needs to be assessed on a case-by-case basis.  The assessment will include, but not be determined by, whether there is a logical and understandable basis for the direction.”

“A direction lacking an evident or intelligible justification is not a reasonable direction but that is not the only basis upon which unreasonableness can be established. It is an objective assessment of the reasonableness of the direction, having regard to all of the circumstances.”

“1. It is directed at ensuring the health and safety of workers of the Mine.

2. It has a logical and understandable basis.

3. It is a reasonably proportionate response to the risk created by COVID-19.

4. It was developed having regard to the circumstances at the Mine, including the fact that Mine workers cannot work from home and come into contact with other workers whilst at work.

5. The timing for its commencement was determined by reference to circumstances pertaining to NSW and the local area at the relevant time.

6. It was only implemented after Mt Arthur spent a considerable amount of time encouraging vaccination and setting up a vaccination hub for workers at the Mine.”

“Had the Respondent consulted the Employees in accordance with its consultation obligations − such that we could have been satisfied that the decision to introduce the Site Access Requirement was the outcome of a meaningful consultation process – the above considerations would have provided a strong case in favour of a conclusion that the Site Access Requirement was a reasonable direction.

BHP has since re-introduced the vaccine mandate after more-extensive consultation with its employees and the miners’ union.

3.        MASK MANDATES FOR BUSINESSES

3.1      Why Comply with Mask Mandates?

Worker’s compensation claims are increasing in the Eastern States.  If one of your workers were to contract COVID from a co-worker, you could face a claim if it could be shown that you failed to take adequate precautions to protect your staff.

Failing to follow Government mask mandates, which are designed to protect workers, may be evidence that could be used against you.  You could face all or any of a worker’s compensation claim, increased premiums, and a negligence claim.  WorkSafe has charged the Victorian Department of Health with 58 breaches of the Occupational Health and Safety Act in relation to Victoria’s initial hotel quarantine program (see media release here) and investigated other instances in the private sector with a view to laying charges.  Worksafe WA will also be looking to prosecute.

3.2       The Basic Rule – Wear a Mask Inside ALL Business Premises!

There is a Government summary here for WA which is slightly misleading, stating:  “Masks are required in the following settings … at all public indoor settings, including the workplace …”. This suggests that only public workplaces are caught, but there is no mention of “public” in the actual Direction and “public” should probably be deleted from that summary.

The actual direction is here. It states “… a person must wear a face covering at all times while they are: … in an indoor space …”, i.e. any indoor workspace.

“Indoor space” is defined to mean “an area, room or premises that is or are substantially enclosed by a roof and a sufficient dividing structure, regardless of whether the roof or sufficient dividing structure, or any part of them, are permanent or temporary or capable of being opened or closed.” That means all business premises except those entirely in the open air, are covered by the broad definition.

3.3       The Exceptions Make the Rule, as Usual …

There are many exceptions in clause 7 of the Direction, including your own home. For businesses the following exceptions are more than likely relevant:

“(g) the nature of a person’s occupation means that wearing a face covering at that time is impractical to perform that occupation or creates a risk to their health and safety; …

(i) the nature of a person’s work or the activity that they are engaging in means that clear enunciation or visibility of the mouth is essential;

(j) the person is at that time consuming food, drink or medicine; and …

(m) the person is working in the absence of others in an enclosed indoor space (unless and until another person enters that indoor space)”

As to what amounts to being unsafe or impractical, that is a judgment call, by the standard of the so-called “reasonable man“.

There is no definition of an “enclosed indoor space“, but we take the view that a typical office is an enclosed space, even if the door is open, so you can remove your mask, if you are alone.

Toilets are enclosed spaces. Most reception areas will not be an enclosed indoor space, so receptionist will need to mask up all day.

A person on business premises needs a mask to exit an internal business office, or other enclosed space on the premises, until that person leaves the premises altogether or enters another enclosed space on their own.

Other relevant exceptions can be found in the actual Direction.

While it might a nuisance for everyone, we strongly recommend that you institute a new policy for your workplace which requires the wearing of masks most of the time, with the only exceptions being those mentioned above.

 

4.        GOVERNMENT MANDATES

4.1      Who is Covered?

Workers from:

(a)           industries which have high risk of community transmission (Group 1); and

(b)          industries deemed critical to keep the economy and community going (Group 2),

… must now be fully vaccinated or exempt in order to enter premises for those industries and note that, in Western Australia, “fully vaccinated” now means double vaccinated, and with a booster within a month of becoming eligible for a booster, for these Groups.

Group 1:

(a)           Border control and air transport;

(b)          Residential and non-residential community care;

(c)           Corrective services, Police and Fire and emergency services; and

(d)          Abattoirs and meat processing.

Group 2:

(a)           Supermarket, grocery, butcher, bakery, fruit and vegetable store, ,fishmonger, and indoor or outdoor food market;

(b)          Restaurant, pub, bar, or cafe;

(c)           Post office;

(d)          Hardware and department stores;

(e)           Child care or family day care provider;

(f)            Staff working in, or entering, remote Aboriginal communities;

(g)           School, boarding school, TAFE, and college of vocational education;

(h)          Financial institution;

(i)            Critical infrastructure and services necessary for the health, safety, or welfare of the community, any person, animal, or premises;

(j)            Petrol station, truck stop, and roadhouse;

(k)           Public and commercial transport (including taxi, rideshare, and other passenger service) freight, and logistics;

(l)            Port operation

(m)         Hotel, motel, or other accommodation facility;

(n)          Funerary or mortuary service; and

(o)          Building, maintenance; or construction service

See here for more detail about exactly who is covered by the above.

Included are any employees and contractors who provide services or goods at the premises, as well as apprentices, trainees, and persons attending the premises for work experience purposes.

In the event of a lockdown or similar restriction, the workers from the following industries (Group 3) will be required to be fully vaccinated to attend work:

(a)           Other click and collect retail;

(b)          Bottle shop;

(c)           Newsagent;

(d)          Pet store;

(e)           Wholesaler;

(f)           Conveyancing settlement agents (time critical legal matters);

(g)          Government or local government services (where working from home not possible);

(h)          Roadside assistance;

(i)            Vehicle and mechanical repair services;

(j)            Journalist and media services;

(k)           Administrative services provided by an employer to enable its employees to work from home;

(l)            Forestry (for critical reasons);

(m)         Primary industries (necessary to provide food to, and care of, animals and maintenance of crops);

(n)          Factories, manufacturing, production, distribution etc.

(A)          Factory or similar facility that is not able to shut down without causing damage or loss;

(B)           Production and distribution of food and groceries, liquor, medical, and pharmaceutical products;

(C)          Commercial operations that supply goods or services for the implementation of measures to limit the spread of COVID-19; necessary to support any critical business activities, or to support the export of goods and services from WA;

(D)         Manufacturing, fabrication, or assembly of goods and materials necessary or related to defence or security industries; and

(o)          Members and staff of Members of Parliament of Western Australia.

 

4.2      Proof of Vaccination Requirements for Western Australian Businesses

4.2.1       Since Monday 31 January 2022, proof of double dose of vaccination or an exemption is required for patrons to enter and remain on business premises in the following industries:

(a)           all hospitality venues including restaurants, cafes, bars, pubs, clubs, taverns, nightclubs, and dine-in fast food (roadhouses, service stations, and takeaway is exempt);

(b)          indoor entertainment venues, including play centres, gaming and gambling, theatres, concert halls, museums, cinemas, and live music venues;

(c)           bottle shops;

(d)          the entire Crown Perth complex;

(e)           major stadiums;

(f)            gyms, fitness centres, and health studios;

(g)           amusement parks and the zoo; and

(h)          music festivals and large events with more than 500 people, unless exempt.

4.2.2       Staff on the other hand, must only have their first vaccination by 31 January 2022 and the second by 28 February 2022. Failure to meet the requirement requires the staff member to be stood down until the requirement is met.

4.2.3       More details of the businesses that are covered are HERE.

 

4.3      Implications of Breaching the Directives

4.3.1       Each employer, principal, or person in charge of the workplace must ensure that:

(a)           all workers are vaccinated or exempt;

(b)          no workers enter the workplace without being fully-vaccinated or exempt; and

(c)           records are kept of every workers’ vaccination status.

4.3.2       Both the venue and the patron can be fined.

4.3.3       Failing to comply with a Direction, without a reasonable excuse, is an offence punishable by a fine of up to $20,000 for individuals and $100,000 for the employer.

 

5.        EXEMPTIONS

5.1          Exemptions are difficult to obtain. They can be permanent or temporary.

5.2          You are exempt if registered on the Australian Immunisation Register (AIR).

5.3        A permanent exemption can be obtained if a person has anaphylaxis to each COVID vaccine, by which time the person will be quadruple-vaccinated by then anyway, there being 4 available in Australia at the moment!

5.4          A temporary exemption may be registered on the AIR if:

(a)           Acute major medical illness (i.e. major surgery or hospital admission for serious illness);

(b)          Vaccine recipient who is a risk to themselves or others during the vaccination process (e.g. due to severe neurodevelopmental condition) may warrant a temporary vaccine exemption;

(c)           People with acute illness from SARS-CoV-2 infection (this may be up to six months after onset of the SARS-CoV-2 infection). Chronic symptoms following COVID-19 (“Long COVID”) is not a contraindication to COVID-19 vaccination.

(d)          For an mRNA vaccine: acute decompensated heart failure, or inflammatory cardiac illness such as myocarditis, pericarditis, acute rheumatic fever, or acute rheumatic heart disease (i.e. with active myocardial inflammation) within the last 3 months.

(e)           Individuals who have experienced a serious adverse event following a COVID-19 vaccination (e.g. Thrombosis with Thrombocytopenia, Immune Thrombocytopenic Purpura, Guillain-Barre syndrome, or Anaphylaxis). An adverse event following immunisation is considered serious if it:

(i)            requires in-patient hospitalisation or prolongation of existing hospitalisation or results in persistent or significant disability/incapacity; AND

(ii)           has been determined following review by, an experienced immunisation provider/medical specialist to be associated with a risk of recurrence if another dose is given; AND

(iii)          has been reported to Western Australian Vaccine Safety Surveillance system.

5.5          An application for the medical exemption can only be made by an authorised medical practitioner. Not all medical practitioners are authorised to make the application. Medical practitioner that are authorised are not obligated to assist. This online decision-making tool has been developed for WA medical practitioners to help assess eligibility.

5.6          A temporary medical exemption typically only last for 6 months, after which time a new application needs to be made.

5.7          Request for temporary medical exemptions can be made to WA’s Chief Health Officer in these situations, but may not be granted:

(a)           if the individual has applied for a medical exemption and is awaiting outcome advice, e.g. waiting for AIR immunisation history statement to be updated;

(b)          if the individual is awaiting clinical assessment with a specialist provider;

(c)           if exemption is being requested for 7 days or less due to acute, severe medical condition that will only cause a short delay to vaccination; or

(d)          if the individual has been vaccinated against COVID-19 outside Australia with a vaccine that is not approved or recognised by the Therapeutic Goods Administration.

5.8          The following are examples of what do not count as grounds for a medical exemption:

(a)           Objection to COVID-19 vaccination based on personal belief;

(b)          COVID-19 vaccine hesitancy and related fears and anxiety;

(c)           Planning a pregnancy or being pregnant or breastfeeding;

(d)          Anaphylaxis and/or allergies such as:

(i)            to medication, food, latex, venom, bees, etc.;

(ii)           minor, common, or expected side effects to a previous vaccine;

(iii)          family history of any adverse events following immunisation;

(iv)          previous allergic reaction to a non-COVID-19 vaccine, including influenza vaccine, is not a contraindication to receiving an mRNA COVID-19 vaccine.

(e)           Medical conditions such as:

(i)            asthma, eczema, atopy, hay fever;

(ii)           chronic underlying medical condition;

(iii)          history of seizures;

(iv)          neurological conditions, including cerebral palsy and Down syndrome;

(v)           most cardiac conditions, unless specified in the ATAGI Guidance on Myocarditis and Pericarditis after mRNA COVID-19 vaccines (external site); and

(vi)          chronic symptoms following COVID-19 (“Long COVID”) is not a contraindication to COVID-19 vaccines.

(f)            Medications:

(i)            Treatment with locally acting, inhaled; or topical steroids; and

(ii)           Replacement corticosteroids.

 

6.        PRIVACY ISSUES

6.1          Information about a person’s vaccination status is sensitive information and is afforded a higher degree of protection under the Privacy Act 1988.

6.2         Consent is required before collecting or disclosing a person’s vaccination status and a business must provide adequate information about what information will be collected, why it is required, and what it will be used for, prior to the employee, customers, clients, visitors, etc. giving consent.

6.3          If just checking status before a one-off entry, there is no need to retain vaccine information.

6.4          The information must be stored securely.

6.5          The collection of vaccination information must be reasonably necessary for a business’ functions or activities, unless an exception applies. Businesses cannot pressure or intimidate employees to provide information about their vaccination status, but can give lawful and reasonable directions restricting a person’s ability to work – see section 1 above.