By Michael Byrnes, Partner and Emily Capener, Solicitor
The COVIDSafe app recently released by the Department of Health is one measure currently being undertaken by the Federal Government to facilitate the process of contacting people who may have been exposed to coronavirus.
The message from authorities is that the more Australians who download the app, the easier it will be to trace outbreaks of the virus and potentially prevent further spread.
Some people are of the view that if you’re not downloading the app you’re ‘letting the side down’ or ‘not doing your bit’. Whether that view is justified is a matter for debate and beyond the scope of this article, but some employers who hold that view might be tempted, either out of what they consider to be general community duty or as a way of managing workplace safety risk, to purport to direct staff to download the app with a threat to impose disciplinary action on employees who refuse to do so. Any employers contemplating such a course should reconsider.
In that regard, clause 9 of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements — Public Health Contact Information) Determination 2020 (the Determination), made pursuant to subsection 477(1) of the Biosecurity Act 2015 makes it clear that downloading and using COVIDSafe is entirely voluntary and such a direction from an employer would be unlawful.
Specifically, clause 9(1) of the Determination states:
- A person must not require that another person:
- download COVIDSafe to a mobile telecommunications device; or
- have COVIDSafe in operation on a mobile telecommunications device; or
- consent to uploading COVID app data from a mobile telecommunications device to the National COVIDSafe Data Store.
Clause 9(2) of the Determination relevantly states:
(2) A person must not:
- take adverse action (within the meaning of the Fair Work Act 2009) against another person;
on the ground that, or on grounds that include the ground that, the other person:
- has not downloaded COVIDSafe to a mobile telecommunications device; or
- does not have COVIDSafe in operation on a mobile telecommunications device; or
- has not consented to uploading COVID app data from a mobile telecommunications device to the National COVIDSafe Data Store.
This means that an employer must not require its employees to download or use the app even where those employees are still required to work at the employer’s premises or may be in contact with other employees or clients. In addition, an employer cannot take adverse action (such as warnings for misconduct or termination of employment) against an employee (or potential employee) for failing to download or use COVIDSafe.
Section 479 of the Biosecurity Act 2015 provides that a breach of the Declaration may attract a maximum penalty of 5 years imprisonment or 300 penalty units ($63,000).
Notably, while the Determination prevents employers from coercing employees to use COVIDSafe, it does not prevent employers from encouraging its use. It is of vital importance, however, that employers observe this distinction when discussing COVIDSafe with employees.
If you have any questions or concerns about the use of COVIDSafe app in the workplace, contact us today on +61 2 9233 5544.