COVID-19 Vax & COVIDSafe App for the Workplace – Fair Work Commission (AU Gov – read)

24 March 2021 - The below quoted directly from the AU Gov Workplace Fair Work Commission website at https://www.fwc.gov.au/about-us/covid-19-information/covidsafe-app-workplace-rights

Introduction

On 14 May 2020, the Privacy Act 1988 (Cth) was amended to support free and informed choice about whether to download and use the COVIDSafe app.

The amendments include new offences and workplace rights in section 94H of the Privacy Act 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.

Among other new offences, section 94H makes it a criminal offence for an employer to:

• require an employee or prospective employee to download or use the app as a condition of employment, or
• to take adverse action against an employee or prospective employee for not downloading or using the app.

The offences also apply to actions taken against independent contractors, prospective independent contractors and others.

Read Section 94H – Requiring the use of COVIDSafe [1] of the Privacy Act.

New workplace rights protected under the general protections

Section 94H(2) of the Privacy Act also establishes new workplace rights that are protected under the general protections provisions of the Fair Work Act 2009.

If an employer takes adverse action against an employee or prospective employee for not downloading or using the COVIDSafe app this could also be a breach of the general protections provisions and the employee or prospective employee may be able to make a general protections application to the Fair Work Commission.

Refusing to allow an employee to enter their normal workplace might also be a breach of these provisions.

Independent contractors and prospective independent contractors are also protected under the general protections provisions.

For more information about the general protections provisions and how to make a general protections application see:

• Overview of general protections laws (PDF) [2]
• General protections involving dismissal [3]
• General protections not involving dismissal [4]