Thinking | 22 October 2021

Expanded mandatory COVID-19 vaccination policy to cover 75% of WA workforce

By Rosemary Roach and Remi Kelly

In response to updated health advice, the Western Australian Government has issued a new mandatory COVID-19 vaccination policy for WA workforces (Policy). The Policy expands on the current mandating of COVID-19 vaccination for certain professional cohorts, including hotel quarantine staff, healthcare and support workers, mission-critical police staff, port workers, freight and logistics workers, resources workers and primary and community health workers. The expansion will capture a broader range of industries and workplaces, estimated to cover up to 75% of the entire WA workforce.

The Policy prescribes a phased approach, described as ‘proportionate’ and ‘based on the public health risk’, in three industry groups as follows:

  • Group 1: first dose by 1 December 2021 and fully vaccinated by 31 December 2021: industries determined as high-risk environments because they are required to interact with people with an increased risk of being infected with COVID-19 or people vulnerable to COVID-19, or are necessary to avoid catastrophic risk to the safety of the community. Some of these industries were announced previously and are in the process of implementation. This group includes cross-border freight workers, primary and community health workers, fly-in fly-out (FIFO) workers, onsite regional and mission critical mining/resources sector workers, border and air transport workers, and corrective services.
  • Group 2: first dose by 31 December 2021 and be fully vaccinated by 31 January 2022: industries and workforce deemed necessary to ongoing delivery of critical services to the community in the event of expected community transmission. Includes workers in retail, hospitality, child care, schools, public transport, and building, maintenance or construction services.
  • Lockdown: must be fully vaccinated to attend work during a lockdown or similar restrictions: these workers will be required to be fully vaccinated to leave home to attend work, to decrease transmission risk and prevent impact on the delivery of these services. Includes workers in click and collect retail, government, media and members of WA Parliament.

The Premier announced in a press conference on 20 October 2021 that the State Government was consulting with industry leaders, peak bodies, unions and employers before issuing directions to give legal effect to the Policy (Directions). In an interview with ABC Radio Perth on 21 October 2021, the Premier confirmed that the Directions will not be finalised until consultation with industry groups has concluded. The Premier clarified this will involve further industry roundtables to provide feedback on the Policy.

It is unclear how long the consultation process will take. We note the State Government announced on 5 October 2021 that FIFO and local workers on WA mining and resource sites, people who work in remote operations, or run critical infrastructure, including remote train and port control must receive their first dose of the COVID-19 vaccine by 12.01am 1 December 2021, and be fully vaccinated by 1 January 2022. However, directions are yet to be issued, despite two and a half weeks passing since the announcement. If the FIFO workers mandate provides any indication of timeframe, it may be a number of weeks before the Directions will be issued.

A careful review of the Directions, once issued, will be critical to understand the precise scope of the Directions (including any exemptions) and the details of requirements that will be imposed on impacted employers. In the absence of any Directions, we recommend that employers carefully consider the Policy and begin preparing for the Directions to be issued by:

  • identifying whether any of the employer’s workers are captured by the Policy and collating any COVID-19 vaccination information the employer already holds in relation to those workers;
  • preparing a communications plan to roll out to the employer’s workforce to explain the Policy (and the subsequent Directions) and its impact on the workforce, ensuring access to interpreters or translated documents for culturally and linguistically diverse employees. We also recommend that employers consider allowing attendance at State-run vaccination clinics during work hours;
  • establishing how the employer will collect, record and hold workers’ vaccination information to maintain privacy to the extent possible and consider how this will be communicated to employees; and
  • ensuring the employer is across any developments in relation to the Policy and the Directions.

The Policy expands on the mandates currently in place for hotel quarantine workers, ports (exposed workers only), residential aged care workers, mission-critical areas in WA Police and parts of public and private hospitals, and public healthcare facilities. Workers in occupations that are determined to have a high transmission risk, are a vulnerability risk or are necessary or critical to the safety of the community high risk must have their first dose by 1 December 2021 and be fully vaccinated by 31 December 2021. Specifically, workers in:

  • cross-border freight (road and rail) – high- and extreme-risk locations only;
  • remaining public and private hospitals and public healthcare facilities;
  • primary and community health;
  • FIFO, onsite regional, mission-critical mining/resources sector;
  • border and air transport;
  • remote Aboriginal communities;
  • residential and non-residential community care services including in relation to disability, mental health, homelessness, drug and alcohol services, child protection, family and domestic violence and Aboriginal peoples;
  • corrective services;
  • WA Police who are not already covered by a mandate;
  • Fire and Emergency Services (excluding volunteers); and
  • abattoirs and meat processing.

Under the Policy, certain industries and workforces are deemed to be critical to the ongoing delivery of business and the functioning of the WA community. To ensure the continuity of key services and businesses in the event of expected community transmission, specific cohorts of critical workers in the following industries and workforces must have their first dose by 31 December 2021 and be fully vaccinated by 31 January 2022:

  • supermarket, grocery, butcher, fruit and vegetable store or fishmonger; indoor or outdoor food market;
  • restaurant, pub, bar or café;
  • bakery;
  • post office;
  • hardware store;
  • child care or family day care provider;
  • school or boarding school (teachers and other support staff)*;
  • financial institution;
  • critical infrastructure and services necessary for the health, safety or welfare of the community, any person, animal or premises eg veterinary clinics, utilities – power, gas and water, public and private, security provided to critical providers/workplaces only, government regulators, domestic and commercial waste and resource recovery;
  • petrol station, truck stops and roadhouses;
  • public transport;
  • commercial transport including taxis, rideshare and other passenger services;
  • remaining Port operations;
  • remaining commercial transport, freight or logistics;
  • hotel, motel or other accommodation facility to provide accommodation services;
  • funerary or mortuary services; and
  • building, maintenance or construction services.

To decrease transmission risk and prevent impact on the delivery of services in the event of a lockdown (or similar restrictions), the Policy requires critical workers in the following industries and workforces to be fully vaccinated to leave home to attend work:

  • ther click and collect retail;
  • bottleshop or liquor store;
  • newsagent;
  • pet store;
  • wholesaler;
  • conveyancing settlement agents (time-critical legal matters);
  • government or local government services where working from home is not possible;
  • roadside assistance; vehicle and mechanical repair services;
  • journalism and media services;
  • administrative services provided by an employer to enable its employees to work from home;
  • forestry (for critical reasons);
  • primary industries (necessary to provide food to, and care of, animals; and maintenance of crops);
  • factories, manufacturing, production, distribution, etc;
  • a factory or similar facility that is not able to shut down without causing damage or loss;
  • production and distribution of food and groceries, liquor, medical and pharmaceutical products;
  • 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;
  • manufacturing, fabrication or assembly of goods and materials necessary or related to defence or security industries; and
  • Members and staff of Members of Parliament of Western Australia.

Privacy considerations

Employees will be required to show proof of their vaccination status to employers by providing either a COVID-19 digital certificate (showing proof of only the employee’s COVID-19 vaccinations) or an Immunisation history statement (showing proof of the employee’s COVID-19 vaccinations and all other vaccinations they have had).

The Directions will set out the requirements that will be imposed on employers to maintain a record of the vaccination status of workers covered by the Direction. However, given the sensitive nature of the information employers will be collecting, recording and holding, they need to be mindful of obligations relating to the privacy of this information and of communicating to their employees that they will comply with these obligations.

As we have noted in an earlier publication, guidance published by the Office of the Australian Information Commissioner (guidance) concerning privacy obligations under the Privacy Act 1998 (Cth) and COVID-19 may assist employers.

Employers should be remain mindful that while the employee records exemption under the Privacy Act applies to the personal information of employees of private sector employers after the personal information has been lawfully collected and held in an employee record, it does not apply to prospective employees, contractors or volunteers. Employers must comply with the Australian Privacy Principles when dealing with the personal information of those individuals.

What if an employer fails to comply with the mandate?

Each employer or person in charge of workplace will be required to ensure that any worker covered by the Direction does not enter the workplace unless the worker is either vaccinated (partially or full) or exempt from vaccination.

Employees will be required to comply with the direction not to enter or work at a location if unvaccinated and to provide evidence to an employer of their vaccination status.

It will be an offence for a person to fail, without reasonable excuse, to comply with any of the directions, punishable by a fine of up to $20,000 for individuals and $100,000 for bodies corporate.

If you need assistance in managing your approach to the new Policy and Directions, please contact a member of our Employment and Workplace Relations team.

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