The Australian government’s strong advocacy for the use of its new tracking app ‘COVIDSafe’ has presented a new COVID-19 issue for employers.
COVIDSafe is being promoted as a way to keep ‘yourself and your community safe’. Given the workplace safety risk of COVID-19 for almost all workplaces (and their clients and customers), should employers be directing their employees to download COVIDSafe to make their workplaces safer? Can employers make such a direction? What if the phone is owned by the employer?
Mandatory downloads are prohibited
The short answer is no. The app is not mandatory and requiring a person to download it is prohibited at law.
This prohibition is found within the terms of theBiosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Public Health Contact Information) Determination 2020 (Determination).
The Determination makes it clear that a ‘Person’ (including an employer) cannot require anyone (including employees) to:
download COVIDSafe; 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;
collect, use or disclose any data from the COVIDSafe app (unless they are one of the authorities permitted to do so in the Determination)
There are also prohibitions on treating a person adversely because they have not downloaded the app.
A person (including an employer) must not:
refuse to enter into, or continue, a contract or arrangement with another person (including a contract of employment); or
take "adverse action" (as defined by the Fair Work Act 2009 (Cth)) against another person; or
refuse to allow another person to enter premises; or
refuse to allow another person to participate in an activity; or
refuse to receive goods or services from another person; or
refuse to provide goods or services to another person
Because the other person:
has not do