Overnight, the Victorian Government released a series of new and updated public health directions in light of Victoria’s lockdown ending last night. These directions commenced at 11.59pm 21 October 2021, and replace previous public health directions.
While there have been limited changes to the existing Mandatory Vaccination Directions, notably these directions will now operate in conjunction with the new “Open Premises Directions”, which place additional vaccination requirements on many workers.
In addition, “Stay Safe Directions” have now been published which replace the previous Stay at Home Directions, and updates have been made to all other public health directions, including the Workplace Directions.
We summarise key requirements and considerations for employers in light of the new directions below.
OPEN PREMISES DIRECTIONS
The Open Premises Directions are a new suite of public health directions introduced overnight imposing obligations upon operators of certain premises (referred to as “Open Premises”) in Victoria, and patrons and workers that attend those premises.
Open Premises are those specified in Schedule 1 and 3 of the Open Premises Directions, and includes premises relating to accommodation, childcare or early childhood, community, education, entertainment, food and drink, retail, and physical recreation.
Obligations on Open Premises Operators
Importantly, unless an exemption applies, these directions require:
- Workers must be fully vaccinated – despite any dates outlined in the separate mandatory vaccination directions, the operator of an open premises must not permit any person (including employees, contractors, etc) to work at the premises unless the person is fully vaccinated or they have a valid exception and the operator must collect, record and hold vaccination information about persons who work at the premises (if they have not done so already).
- Maintenance of a system for vaccination information checks and COVID Check in Marshals – the operator of an open premise must maintain a system that requires a “patron” (i.e. a person that is not a worker or an emergency attendant) that is 16 years or older and attends the premises to show a person working at the premises “acceptable evidence” that records that they are either fully vaccinated or have a valid exception.
Acceptable evidence means:
(a) for a person who is fully vaccinated:
- successful completion of a Service Victoria QR check-in that includes information that the person is fully vaccinated; or
- a COVID-19 digital certificate displayed through the Medicare App, the Service Victoria App or equivalent smartphone wallet; or
- a printed version of a COVID-19 digital certificate or immunisation history statement issued by the vaccination provider, a medical practitioner or the Australian Immunisation Register, but does not include a copy of the COVID-19 digital certificate that is printed by the person.
(b) for a person with a valid exception certification from a medical practitioner that the person is unable to receive a dose, or a further dose, of a COVID-19 vaccine due to a medical contraindication or due to an acute medical illness.
The system maintained must also include the placement, at each entrance to a premises that is accessible by a patron, of a worker who is designated as a COVID Check-in Marshal who requests each patron attending to show acceptable evidence that the patron is fully vaccinated or has a valid exception.
- Patrons must be fully vaccinated – the operator of an open premise must take all reasonable steps to ensure that a patron, who is not fully vaccinated and who does not have a valid exception, or who does not show acceptable evidence that they are fully vaccinated or have a valid exception, does not enter, or remain on, the premises.
- Separate entrance at private residences – if an open premise is located at a private residence, the operator must have an entrance accessible to patrons that is separate to the entrance used by the residents of, or visitors to, the private residence.
Additional Requirements and Exceptions
The Open Premises Directions also contain several key additional requirements and exceptions in addition to the above requirements. Notably these include:
Childcare / Early Education Premises – the operator of a childcare or early childhood premise in metropolitan Melbourne must not provide services to a child, or in regional Victoria must not provide services to a child who ordinarily resides in metropolitan Melbourne unless:
(a) at least one parent, guardian or carer of the child is an authorised worker or works for an authorised provider and is unable to make alternative supervision arrangements for the child (irrespective of vaccination status); or
(b) each parent, guardian or carer of the child with whom the child ordinarily resides is fully vaccinated or have a valid exception, and the operator must maintain a system that requires the parent, guardian or carer of the child to show a person working at the premise acceptable evidence (as defined above) that they are fully vaccinated or an excepted person; or
(c) the child is a child of a single parent, guardian or carer, and that person is working and is unable to make alternative supervision arrangements for that child (irrespective of vaccination status); or
(d) the child is a vulnerable child.
Food and Drink Premises – The operator of a food and drink premises must take all reasonable steps to ensure patrons remain seated unless the patron is entering or leaving the premises, making an order or accessing a bathroom.
In addition, the obligations outlined above in respect to requiring the provision of vaccination information and refusal of entry for those who are not fully vaccinated do not apply:
(a) in relation to a patron, if a food or drink premises is being operated for the purposes of providing take-away goods or delivery of pre-ordered goods and seated service, and that patron attends only to collect those goods. Importantly, this means that food and drink premises cannot operate on a take-away and seated service basis with staff that are not fully vaccinated.
(b) if a food or drink premises is being operated for the purposes of solely providing take-away goods or delivery of pre-ordered goods, meaning staff working at such premises only need to be partially vaccinated at this stage, and must be fully vaccinated by 26 November 2021.
(c) in regional Victoria if the operator of the premises complies with lower patron limits for unvaccinated operations, noting requirements in the Mandatory Vaccination (Workers) Directions (No 5) will still apply.
- Retail Premises – the obligations requiring the provision of vaccination information and refusal of entry for those who are not fully vaccinated also do not apply to essential retail premises (e.g. supermarkets) and, at this stage, general retail premises (although general retail premises may only operate currently in metropolitan Melbourne for contactless collection or delivery of pre-ordered goods or in an outdoor space). However, retail workers will still need to be vaccinated and provide vaccination information in accordance with the Mandatory Vaccination (Workers) Directions (No 5).
Further additional requirements and exceptions also apply to premises relating to accommodation, community, education, entertainment, and physical recreation, as well as in relation to those Premises in regional Victoria. Finally, the Open Premises Directions also outline patron and density limits for indoor and outdoor spaces of open premises.
STAY SAFE DIRECTIONS
In addition to the new Open Premises Directions, the Stay at Home Directions have been replaced by the Stay Safe Directions. The Stay Safe Directions (Metropolitan Melbourne) remove the six valid reasons to leave home and now persons who ordinarily reside in Victoria are permitted to leave their home for any reason.
Despite this, the Stay Safe Directions (Metropolitan Melbourne) provide restrictions on the travel to regional Victoria, permitting such travel for work-related reasons only for authorised workers who are required to attend a premises in regional Victoria. Additionally, it remains a requirement to wear a face covering while indoors and outdoors (unless an exemption applies).
WORKPLACE DIRECTIONS – AUTHORISED WORKER PERMITS AND WORK FROM HOME
While the updated Workplace Directions contain a number of provisions which are the same as those in previous workplace directions, there have also been key updates, including that requirements relating to authorised worker permits no longer apply. We understand this to mean worker permits are no longer required for those workers attending work premises outside of their place of residence.
In addition, under the updated Workplace Directions, an employer may continue to permit a worker to perform work at the employer’s work premises if it is not reasonably practicable for the worker to perform work at their ordinary place of residence or another suitable premises which is not the work premises. Further, an employer must take reasonable steps to ensure a worker, when working at a work premises wears a face covering when required to do so. Similar to the Stay Safe Directions, the Workplace Directions also outline work premises visitor and density limits.
TAKEAWAYS FOR EMPLOYERS
Considering the above, important takeaways for employers include:
- Operators of open premises must ensure that from 11.59pm 21 October 2021 only vaccinated workers are onsite to perform work (unless an exception applies).
- Operators must ensure they have an appropriate system in place for vaccination status checks, which includes COVID Check in Marshals.
- An employer may permit a worker to perform work from their premises if it is not reasonably practicable for the worker to perform work from home.
- Authorised Worker Permits are no longer required; however, employers and their staff must comply with the restrictions on travelling between metropolitan Melbourne and regional Victoria.
- Employers should be mindful of their occupational health and safety obligations as Victoria begins to reopen and take appropriate steps to ensure compliance with the public health directions, particularly given failures to comply with the Public Health Directions can result in significant penalties (at times, in excess of $100,000) imposed on businesses.
*Note this article has been updated in response to the Open Premises Directions (No 2) which commenced on 23 October 2021 at 11.59pm.