Overview

the General Protections provisions of the Fair Work Act 2009 has been amended to make it unlawful to insist on an employee downloading the Government’s COVID-19 Safe App under threat of 5 years jail. The new provisions are:

Requiring the use of COVIDSafe

Section 94H of the Privacy Act 1988

(1) A person commits an offence if the person requires another person to:

(a) download COVIDSafe to a communication device; or

(b) have COVIDSafe in operation on a communication device; or

(c) consent to uploading COVID app data from a communication device to the National COVIDSafe Data Store.

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

(2) A person commits an offence if the person:

(a) refuses to enter into, or continue, a contract or arrangement with another person (including a contract of employment); or

(b) takes adverse action (within the meaning of the Fair Work Act 2009) against another person; or

(c) refuses to allow another person to enter:

(i) premises that are otherwise accessible to the public; or

(ii) premises that the other person has a right to enter; or

(d) refuses to allow another person to participate in an activity; or

(e) refuses to receive goods or services from another person, or insists on providing less monetary consideration for the goods or services; or

(f) refuses to provide goods or services to another person, or insists on receiving more monetary consideration for the goods or services; on the ground that, or on grounds that include the ground that, the other person:

(g) has not downloaded COVIDSafe to a communication device; or

(h) does not have COVIDSafe in operation on a communication device; or (i) has not consented to uploading COVID app data from a communication device to the National COVIDSafe Data Store.

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

(3) To avoid doubt:

(a) subsection (2) is a workplace law for the purposes of the Fair Work Act 2009; and

(b) the benefit that the other person derives because of an obligation of the person under subsection (2) is a workplace right within the meaning of Part 3-1 of that Act. A communication device includes a mobile telephone or tablet computer.

 What is the protection?

An employer must not take adverse action against an employee or prospective employee, on the grounds that they:

• have not downloaded COVIDSafe to a communication device

• do not have COVIDSafe in operation on a communication device, or

• have not consented to uploading COVID app data from a communication device to the National COVIDSafe Data Store.

Example

An employer must not dismiss an employee or refuse to employ a person because they haven’t downloaded COVIDSafe.

Are there exceptions?

There are no exceptions.