In this information sheet:
The easing of COVID-19 related restrictions and high vaccination rates leads to an opportunity for live event spaces to reopen. However, reopening raises the question as to whether the COVID-19 vaccination can be made mandatory for workers, visitors and audiences. The Federal and State Governments have emphasised the importance of vaccination rates for live performances and events to commence. Whether such a requirement can be imposed will depend on the specific circumstances.
Generally, an employer can only make the COVID-19 vaccine mandatory for employees where there is:
- a specific law requiring employees in a particular industry to be vaccinated (such as under public health orders);
- a term enabling mandatory vaccinations in the employment contract or an industrial instrument, such as a modern award; or
- a lawful or reasonable ground to do so. For example, where a vaccination requirement would be reasonable on the grounds of safety. This will depend on the specific circumstances and may differ between individual employees or a class of employees. Employers should conduct a role-specific work health and safety risk assessment to determine if a vaccination requirement is necessary to prevent the spread of COVID-19.
b) Performers (Contractors)
A: Employers can mandate that contractors are required to have the COVID-19 vaccination in the terms of the agreement. However, this must accord with the employer’s legal obligations, such as under the discrimination protection laws.
Government mandates (such as public health orders) may also apply to volunteers. Employers should review the applicable government mandate in your State or Territory.
In the absence of a government mandate, it is open for employers to require vaccination as a condition of volunteering. However, like contractors, volunteers are protected by discrimination protection laws so employers must carefully consider any volunteer’s reasons for non-compliance with a requirement to be vaccinated before refusing to allow them to work.
In some States and Territories, for example in NSW, unvaccinated people are subject to stay-at-home orders. Audience members in those States and Territories at live performances and people who attend live event spaces, such as museums, will be required to be vaccinated. However, the public health orders and government directives are rapidly changing and employers should keep up-to-date with developments.
In addition to any applicable government mandates, museums, galleries and exhibition spaces must comply with the State or Territory COVID-19 safety plan requirements. For instance:
- In New South Wales it is mandatory for museums and galleries to have a COVID-19 Safety Plan and register as a COVID Safe business (https://www.nsw.gov.au/covid-19/covid-safe/information-and-educational-facilities).
- In Queensland, event and exhibition spaces must comply with the COVID Safe Checklist.(https://www.covid19.qld.gov.au/government-actions/covid-safe-checklist-for-restricted-businesses) and the COVID Safe Event Checklist (https://www.covid19.qld.gov.au/government-actions/covid-safe-events).
3. What about if my audience is going to be made up of vulnerable people (elderly, pre-existing medical conditions, remote/regional communities) – does this impact the ability to mandate vaccination for people involved in the work we present to the public?
Yes. In the absence of laws requiring workers to be vaccinated as described above, employers may mandate the vaccine for workers if it is lawful and reasonable to do so. The interaction between vulnerable people supports the reasonableness of a vaccination requirement because these people have a higher risk of developing more serious side effects to COVID-19. However, the mandate must still comply with Federal and State or Territory laws, such as discrimination protection legislation.
4. What can we do if any staff disagree with our vaccine policy? (Either they don’t wish to be vaccinated or are uncomfortable sharing the office with someone who is unvaccinated)
COVID-19 vaccination should be undertaken on the advice of a medical practitioner. [Who doesn’t seem appropriate that they can only consult employer? Their GP? Do they need a medical certificate?] The employer should seek to have open and honest discussions with employee on their concerns and direct them to helpful resources such as the information provided by the Department of Health (https://www.health.gov.au/initiatives-and-programs/covid-19-vaccines/is-it-true).
Where the employee does not wish to be vaccinated, the employer should seek to understand why the employee does not wish to obtain the vaccine and whether they qualify for an exemption under the policy, such as on medical grounds. In limited circumstances, an employer may take disciplinary action. However, the employer should consider all other options that are available before pursuing such action and review whether the employee reasons for non-compliance are protected under discrimination legislation.
Where an employee feels uncomfortable sharing the office with another employee who is unvaccinated, the employer should discuss these issues and concerns with the employees. The employer should also consider alternative working arrangements.
In an employment context, an employer can request to see a copy of a person’s vaccine certificate if the employer has lawful and reasonable grounds for mandating the COVID-19 vaccine or if this information is reasonably necessary for the employer’s work health and safety obligations to provide a COVID-19 safe workplace.
In other circumstances, such as with audience members, such a request can only be made where the type of venue or space requires patrons or audiences to be vaccinated on the grounds of safety or to ensure compliance with public health orders.
6. Can my organisation insurance premiums or conditions change based on our mandating of vaccines or not? Can we be liable if someone contracts covid at our venue?
Insurance companies are yet to settle on a decision as to whether premiums or conditions change according to an organisation’s vaccine policy.
A venue may be liable where a patron contracts COVID-19 at the premises on the basis that it was negligent in not ensuring the premises were safe. The organisation owes a duty of care to its audience and employees to take all reasonable steps to minimise the risk of exposure to the virus.
It is best to ask your insurer so you are clear about whether you’re covered or not.
- Visit your State or Territory’s government health website for further information on applicable public health orders
- Cth health information – COVID-19 vaccines from the Department of Health
- ATAGI guidance on COVID-19 vaccines – https://www.health.gov.au/resources/publications/covid-19-vaccination-atagi-clinical-guidance-on-covid-19-vaccine-in-australia-in-2021
- Fair Work Ombudsman – https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations#legislation-and-public-health-orders
- Discrimination and COVID-19 related information – https://humanrights.gov.au/about/covid19-and-human-rights/covid-19-vaccinations-and-federal-discrimination-law
- Principles for Reactivating live Performance and Events – Roadmap and National Principles page
- Creative economy taskforce – https://www.arts.gov.au/covid-19-update/creative-economy-taskforce