In brief - As rules and restrictions applying to businesses are eased, consultation and communication with your workforce remain key for employers in managing ongoing Covid-19 risk and implementing control measures to manage that risk

From Wednesday, 15 December 2021, the NSW Government has relaxed the rules and restrictions that apply to businesses throughout NSW.

The public health orders have been amended to allow people who are not fully vaccinated against Covid-19 to enter certain business premises. However, businesses may still determine to make vaccination, the wearing of a face mask or other reasonable requirement, a condition of entry to their business premises.

Currently, the NSW public health orders require the wearing of a face mask, for persons over the age of 12 years:

  • on public transport and whilst waiting for public transport

  • at airports and whilst in planes

  • for indoor hospitality staff who are not fully vaccinated.

Covid-19 health and safety obligations for business premises

The Work Health and Safety (WHS) Laws of NSW require all employers and businesses to manage the risk of Covid-19 to workers and other persons.

In meeting the health and safety requirements, both businesses and workers must:

  • comply with national and state public health directions

  • promote physical distancing and hygiene measures

Additionally:

  • workers must raise any concerns with their employer regarding Covid-19 at work

  • businesses must monitor Covid-19 in your community and consult with your workers.

Continue to assess the risk of Covid-19 exposure in your workplace

Every business and employer is required to assess the risk of Covid-19 exposure to workers.

This must be undertaken, in consultation with workers, to eliminate or minimise the risk to health and safety, as far as is reasonably practicable.

Every workplace, mine site or construction site is different and must assess the risk faced to workers and others, and implement the reasonably practicable control measures.

Whether the control measures are mandatory vaccination, face masks, physical distancing or other measures, will be determined by the agreed control measures, through a consultation process.

Employers must comply with their workplace consultation process

When implementing new control measures to respond to a potential workplace risk, it is important to ensure that you comply with your workplace consultation process.

The consultation process for each workplace will often be set out in an enterprise agreement, award, contract or workplace policies.

Consultation is also required under the WHS Act of NSW and other states and territories.

The Full Bench of the Fair Work Commission recently considered consultation in the matter of CFMEU v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059 (Mt Arthur). The decision of 3 December this year, determined that inadequate consultation occurred on the implementation phase of the "Site Access Requirement".

This requirement directed that all employees will not be permitted access to the mine, after midnight on 9 November 2021, unless they have provided evidence to Mt Arthur that they have received a single dose of an approved Covid-19 vaccine by 9 November 2021.

The Court found:

Mt Arthur's failure to meaningfully consult with the Employees denied the Employees the opportunity to influence the Respondent in its decision-making process and the possibility of a different outcome. We are not persuaded that further consultation could not possibly have produced a different result.

The Court determined that the words regarding the requirement of "will be introduced" presents a position that the requirement is a "fait accompli". There were no words of "may', "proposed to" or "intended to" introduce the requirement.

The Court found that the deficiencies in the consultation process determined that the Site Access Requirement was not a reasonable direction.

What should employers do?

We recommend that consultation and communication with your workforce continue through these challenging times. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2022.

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