While NSW Premier Gladys Berejiklian hedged on how the state would manage a vaccination mandate for hospitality businesses, a legal expert says clear guidelines are crucial to stave off “business uncertainty” around reopening.
Berejiklian was pushed this week to explain whether the NSW government had obtained advice both on the legality of mandating vaccinations and on the requirement for businesses to enforce any rules.
Businesses are navigating a legal framework that “wasn’t designed for dealing with a pandemic”, Amy Zhang, executive counsel at Harmers Workplace Lawyers, told Business Insider Australia.
The government needs to provide clarity quickly on what policing a vaccination mandate for public-facing businesses looks like, Zhang said.
As part of the “roadmap to freedom” presented by the state government on Thursday 9 September, hospitality businesses including pubs, restaurants and cafes, as well as retail settings, entertainment venues and health and beauty services, will be able to reopen after the 70% double dose vaccination target is achieved.
For the businesses allowed to reopen, all staff and patrons must be fully vaccinated as a condition of operation, in addition to following density limits.
On Wednesday, the NSW premier reaffirmed her commitment to the double-dose vaccination requirement in the government’s reopening roadmap.
“At 70%, if you’re not vaccinated, it will be a health order and the law that if you’re not vaccinated, you can’t attend venues on the roadmap,” the premier said at Wednesday’s press conference.
“You can’t go into a hospitality venue. You can’t go to ticketed events unless you are vaccinated. We made that very clear.”
Berejiklian was also pushed to clarify whether the NSW government had received advice on the legality of mandating vaccinations and on the requirement for businesses to enforce any rules.
The premier said the government would “need to seek legal advice”, saying it was in “uncharted territory”.
“We receive advice from a myriad of sources every step of the way and what people choose to do individually is on them in terms of legal issues, but I will say this – our job is to provide certainty and safety to the community but also to see both patrons enjoying their freedom,” she said.
Zhang said that businesses were already contacting the firm with questions around their responsibilities while planning to reopen.
“At the moment, there’s not a lot of detail from the government as to how that’s all going to work, and what exactly will be required of businesses,” Zhang said.
“The current legal framework [in NSW] is a bit of a patchwork quilt of various legal frameworks,” she said, with anti-discrimination law, contract law, employment law, and work and safety legislation all separate but “interact[ing] in some way”, she said.
As a result, Zhang said, “It’s just very, very murky at the moment as to what exactly is the legal position depending on the particular business’s situation.”
The legal landscape is less complicated in NSW because the state does not have a Human Rights Act. In states and territories that do, such as Victoria, the ACT and Queensland, legislators would have to consider the human rights implications of any rules which limited access to places on the basis of vaccine status.
Zhang said the premier’s commitment to a public health order on Wednesday meant that businesses had a clear directive to comply with, and that noncompliant businesses would face “additional legal exposures like investigations and prosecutions by workplace safety regulators”.
“There might be workers compensation and negligence claims, and potentially class actions if employees or patrons contract COVID while they’re at one of these particular venues on premises,” she said.
However, Zhang said the premier urgently needed to offer businesses defined guidelines around the public health order so they could confidently move forward with reopening.
“It’s very important for there to be clarity for businesses and employers, because at the moment, they’re trying to navigate these murky legal issues. And it can be very difficult for small businesses, particularly to pay money to get legal advice and still have that uncertainty.”
As a lack of clarity from the NSW government collides with a backlash among some to mandate measures, social media groups populated by small businesses are emerging.
An Australian Facebook group for businesses who plan to accept both vaccinated and unvaccinated patrons, which formed just under a month ago, has ballooned to almost 160,000 members.
Ashik Ahmed, co-founder and chief executive of Deputy, a shift-work app used by several major hospitality groups, told Business Insider Australia that from his perspective within the hospitality industry, a rule that ensured the majority of people would feel safe dining out again was the best course of action for the industry.
“The only way for the hospitality industry to survive the pandemic is if we step up and get vaccinated,” Ahmed said.
While there was a sense of nervousness among some businesses around managing the mandate, he said, “This will need to change for the hospitality industry to survive the impacts of the pandemic.”
Ahmed said the businesses he worked with were supportive of measures that required employees to be vaccinated, but added that the state government needed to explain how this should be managed by individual companies.
“Business owners in the hospitality industry are often part of a wider community and owe it to them in this time to step up and ensure their employees are vaccinated,” he said.