Can employers force their employees to download the COVIDSafe app?

Introduction

The Federal Government launched the COVIDSafe app as part of their work to slow the spread of COVID-19, indicating the app will help state and territory health officials to quickly contact people who may have been exposed to COVID-19. The message widely spread by the Government is that the more people download the COVIDSafe app, the easier it will be to stop the spread of COVID-19.¹

On 15 May 2020, the Privacy Amendment (Public Health Contact Information) Act 2020 (Act) received Royal Assent, regulating the operation of the COVIDSafe app.²

Direction to download the COVIDSafe app

The question arises as to whether employers, as a measure to manage workplace health and safety risks, can direct their employees to download the app and impose disciplinary action on those who refuse to do so.

The short answer to that question is no. Subsection 94H(1) of the Act prohibits coercing individuals to download or use the COVIDSafe app, expressly indicating that a person must not require that another person to:

• Download COVIDSafe to a mobile telecommunications device; 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.

In addition to the above, subsection 64H(2) of the Act states that a person commits an offence if the person: (i) refuses to enter into, or continue, a contract or arrangement with another person (including a contract of employment); or (ii) takes adverse action, within the meaning of the Fair Work Act 2009 (Cth) (FW Act), against another person; or (iii) refuses to allow another person to enter premises which are otherwise accessible to the public, or that the person has otherwise the right to enter; or (iv) refuses to allow another person to participate in an activity; or (iv) refuses to receive goods or services from another person, or insists on providing less monetary consideration for the goods or service; or (v) 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:

• Has not downloaded COVIDSafe to a communication device; or
• Does not have COVIDSafe in operation on a communication device; or
• Has not consented to uploading COVID app data from a communication device to the National COVIDSafe Data Store.

Therefore, employers cannot direct employees to download the COVIDSafe app, even if their work needs to be performed at the employer’s premises, and requires potential contact with other employees or clients.

To avoid doubt, subsection 94H(3) of the Act indicates that:

• Subsection 94H(2) is a workplace law for the purposes of the FW Act; and
• 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 the FW Act.

Based on this, an employer must not take adverse action against employees (or prospect employees) for failing to download the COVIDSafe app.³

Penalties for breaching the Determination

The note in subsection 94H(1) of the Act indicates that breaching the Act carries imprisonment for five years or 300 penalty units, or both.

Recommendations

Despite prohibiting coercing individuals to download the COVIDSafe app, the Act does not prohibit employers from encouraging the use of the COVIDSafe app in their workplaces. In doing so, employers must make clear that downloading the COVIDSafe app is voluntary, and that a refusal to do so will not result in adverse action taken against anyone.

The COVID-19 situation in Australia is continuously evolving. This update is correct as at 18 May 2020. We encourage you to contact us to keep up to speed with the latest developments.