COVID-19: Next Steps

As we emerge from lockdown and vaccination rates increase, RSL & Services Club Boards need to plan their approach to vaccination policies. What we are hearing is that this is not a one size fits all.

Whatever approach you take, the RSL & Services Clubs Association (RSL & SCA) recommends a cautious and methodical approach.

For Boards, this brings into focus your role as a Director – which is, as always, to plan the risk and strategy for your club. The pandemic has tested us all to make decisions and deal with situations we’ve never encountered before, and the next steps, if you haven’t already addressed these, are to develop and implement policies and rules to manage the evolving situation.

Mandatory vaccination policies are being rolled out in many workplaces. As a Board you need to decide if this is an approach that you would like to take, including the pros and cons. Consider your obligations to your staff to provide a safe working environment.

Also, please keep in mind that currently the Workers Compensation Act 1987 (NSW) provides that an employee in our industry will be presumed to have caught COVID-19 in the course of their employment unless the contrary is established. This has financial, as well as work health and safety, implications. This may however change in due course.

RSL & SCA recommends, with regards to staff, a cautious approach: adopt a mandatory vaccination policy, monitor the landscape and review. Based on the available evidence, our suggested approach would be in line with ClubsNSW advice.

In light of this, we outline matters for consideration in the coming weeks. The NSW Public Health Orders hinge on the 95% vaccination rate. Notwithstanding this – if you haven’t already formed a position on mandatory vaccination for staff, we recommend that you tackle this as soon as possible.

Suggested Timeline

  • 22 November – decide at Board level what will be your club’s approach towards mandatory vaccination for staff (which is currently supported by recent case law) and patrons (which is less tested before courts and tribunals)
  • 24 November – complete a consultation period with staff in accordance with the Registered & Licensed Clubs Award or your enterprise agreement (and if required, with members)
  • 6 December – communicate whether you have a mandatory vaccination policy to your staff and/or members/patrons (as applicable)
  • 15 December – Under the current Public Health Orders and NSW Government announcements, unvaccinated staff and patrons will be permitted to work/patronise clubs
  • Consider vaccination effectiveness and efficacy – when will staff (and patrons) need boosters and what systems do you need in place to trigger updates/booster vaccination certificates (and whether this is consistent with NSW Government policy)
  • 28 February – review any mandatory vaccination policy and whether its operation should end or be extended further
    If your club introduces a mandatory vaccination policy, we encourage your Board and management to review it regularly (at least every two months).

Some frequently asked questions for your consideration:

FAQ’s

  • Can unvaccinated staff sign a waiver for Workers Compensation, if they choose to work unvaccinated?

No – a waiver of such rights would not be legally enforceable. 

  • Is your club liable under section 10(1)(i) of the Registered Clubs Act if it introduces a mandatory vaccination policy?

Whilst this is an untested proposition, the current indicators are that clubs would not automatically be in breach provided the policy is applied uniformly to all patrons.  However, section 10(1)(i) is a common provision which clubs commonly trip up, therefore they should seek legal advice regarding the implications of introducing such a policy.

  • Am I discriminating against employees by having a mandatory vaccination policy for either/both? 

A club is unlikely to be unlawfully discriminating against a person simply by introducing a mandatory vaccination policy, unless that person can demonstrate that the policy introduces conditions with which it is difficult for them to comply due to a protected attributed such as their gender, disability, race etc.

  • Am I discriminating against members/patrons by having a mandatory vaccination policy for either/both? 

Again, a person will need to establish that they have been unlawfully discriminated on a specific attribute such as gender, race, disability, etc. – the latter being the more likely scenario in the context of mandatory vaccination. This is less likely to arise provided policies include exceptions for persons who are unable to be vaccinated due to a medical contraindication etc. Clubs should still be careful to ensure both the wording of their policy and how it is implemented do not inadvertently adopt discriminatory language or have a practical effect of unlawfully discriminating against a member or patron. Clubs should also ensure they get clear advice about their Constitution or Rules prior to introducing a mandatory vaccination policy in respect of patrons.

  • Can I change the vaccination policy or does it need to be a permanent policy?

Generally, you can change the vaccination policy provided it has been reviewed and adopted by the Board. Clubs are encouraged to ensure the policy is flexible and not permanent, particularly given how rapidly circumstances have changed over the last two years since the onset of the pandemic. This includes having language in the policy that expressly refers to a club’s ability to modify from time to time.

  • Can I wait for the vaccination rate to reach 95% in my local government area?

Any mandatory vaccination policy your club implements does not necessarily have to align with the dates under the Public Health Orders.  It would therefore be okay for your club to introduce a policy before or after the expiry of any public health order prohibiting unvaccinated persons in hospitality premises.  However, you will mainly need to consider the pros and cons of implementing such a policy as specific to your local area.

The above information is general in nature only. We encourage clubs to carefully work through the key risks and considerations of whether to introduce mandatory vaccination policies.

If you would like to obtain specific legal advice, please contact Thomson Geer Clubs partner Arj Puveendran (02 8248 3494 / apuveendran@tglaw.com.au) or Workplace Relations partner Jonathon Corlett (02 8248 5851 / jcorlett@tglaw.com.au).