COVIDSafe App and employee rights

With the introduction of the COVIDSafe app, protections were added to the  Privacy Act 1988 (Cth) (the PA).

Consequently, the Fair Work Commission recently released an update to their General Protections bench book to include workplace rights that are intended to protect employees and others from disadvantage or other adverse consequences if they decide not to download or use the COVIDSafe app.

COVIDSafe protections

Section 94H (Requiring the use of COVIDSafe) has been added to the PA. Under this provision, a person commits an offence if they require another person to:

1. download COVIDSafe to a communication device; or
2. have COVIDSafe in operation on a communication device; or
3. consent to uploading COVID app data from a communication device to the National COVIDSafe Data Store.

The maximum penalty that can be imposed by the courts is 5 years imprisonment or 300 penalty units or both. A penalty point is currently $210.

Also, under the PA, a person commits an offence under Commonwealth law if they:

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:
4. premises that are otherwise accessible to the public; or
5. premises that the other person has a right to enter; or
6. refuse to allow another person to participate in an activity; or
7. refuse to receive goods or services from another person, or insists on providing less monetary consideration for the goods or services; or
8. refuse to provide goods or services to another person, or insists on receiving more monetary consideration for the goods or services;

because the other person:

7. has not downloaded the COVIDSafe app; or
8. does not have COVIDSafe in operation; or
9. has not consented to uploading COVID app data to the National COVIDSafe Data Store.

Again, the maximum penalty that can be imposed by the courts is 5 years imprisonment or 300 penalty units or both.

The actions listed in (a) to (i) above, are deemed to be workplace law for the purposes of the Fair Work Act 2009 and the benefit that the other person derives because of an obligation of an individual is a workplace right within the meaning of the General Protections part of that Act.

Practical Application

Employers must be alert to the effect of this provision and ensure that they do not breach it when they are preparing and communicating return to work plans for their staff. There are no exceptions to the application of section 94H and whilst you can speak about the benefits of the app in managing COVID-19 transmission risks, you must not exceed that position and appear to enforce the download of the app.

There is also a risk that co-workers may engage in bullying conduct where they have formed an opinion that staff should download the app and a member of the team has not complied with the group’s expectations. Given that all employers and their staff have an obligation, under workplace health and safety laws to take reasonable steps to protect the health and safety (including mental health) of all people working in and with the organisation, instructing staff that they must not engage in bullying conduct is also relevant. Workers who believe they are being bullied may also have access to the anti-bullying jurisdiction of the Fair Work Act 2009. Whilst there are no financial penalties under the Federal bullying jurisdiction, the Fair Work Commission can issue orders to stop bullying to protect the health and safety of the worker or workers affected.

If you need assistance in forming workplace policies relating workplace bullying or require advice about how to manage the risks relating to COVID-19 in your workplace, the Active Law team can assist you. You can contact us on (07) 3160 0000 or at reception@activelaw.com.au.  

Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not and is not intended to be, legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.