The NSW Government has announced strict new measures to mitigate the risk of community and workplace transmission of COVID-19 in NSW – particularly across Local Government Areas (LGAs) of concern.
Many of the restrictions will affect members employed across our industries, who cannot work from home.
As of today, NSW LGAs of concern include:
Bayside, Blacktown, Burwood, Campbelltown, Canterbury-Bankstown, Cumberland, Fairfield, Georges River, Liverpool, Parramatta, Strathfield and the following suburbs in Penrith: Caddens, Claremont Meadows, Colyton, Erskine Park, Kemps Creek, Kingswood, Mount Vernon, North St Marys, Orchard Hills, Oxley Park, St Clair and St Marys.
If you reside in, or work in, any of the above council areas or travel more than 50km outside of the Greater Sydney area and cannot work from home, some, or all, of the new restrictions may apply to you.
This list is subject to change, and members should keep themselves informed of current LGAs of concern by visiting this web link: https://www.nsw.gov.au/covid-19/rules/affected-area
Authorised worker permit
Beginning last Saturday, 28 August, members who live in an LGA of concern and are required to leave that LGA for work, don’t live in an LGA of concern but required to enter one to attend for work or travel 50km outside of Greater Sydney for work are required to carry a permit issued by Service NSW declaring that they are an authorised worker and cannot work from home.
If you have not already done so, you can obtain a permit at the Service NSW website via this link: https://www.service.nsw.gov.au/transaction/register-your-travel-within-nsw
Requirement to be vaccinated
On 27 August 2021, the NSW Government released amendments to the Public Health Order in relation to vaccination requirements for authorised workers which removed the option for employers to implement rapid antigen testing in their workplace to enable unvaccinated workers to continue working.
The updated Public Health Order now require workers who live in an LGA of concern to have received their first vaccination dose by 6 September 2021 in order to continue working outside their LGA.
Regular rapid antigen testing in lieu of vaccination is no longer an option, under the updated Public Health Order.
Workers should ensure they have access to their vaccination record at all time as they can be required to produce this to the police, another authorised officer and their employer.
Members should ensure they either print a copy or download an electronic copy on to their smart devices from the Medicare profile attached to their myGov account. This can be accessed at: www.my.gov.au
If your vaccination status changes at any time, you should notify your employer immediately to ensure you are not affected by ongoing changes to restrictions.
For those employed at Australia Post, you can do this by resubmitting your declaration form by visiting http://ourpost.com.au/edp
Legality of the restrictions and employer compliance activity
A number of members have raised concerns with us regarding the legality of the Public Health Orders being made by the NSW Government.
In order to provide clarity to concerned members, the Union has commissioned legal advice from senior lawyers at Slater & Gordon Lawyers on the legality of the Public Health Orders and the way in which they have been executed, the legality of Australia Post’s data collection exercise and whether or not any conflict exists between relevant State and Federal legislation, including the Constitution and relevant privacy legislation.
The conclusion of that advice is as follows:
In our view the Public Health Orders made by the NSW Minister for Health are valid and executed lawfully in accordance with section 7 of the Public Health Act and do not represent conduct which offends the Constitution.
Furthermore, Australia Post has sought to implement processes to ensure that all of its affected workers can continue working for the duration of the Current Order. In our view, these processes do not represent unlawful or nefarious conduct or conduct which offends the Privacy Act.
A failure to comply with a direction made under section 7 of the Public Health Act (such as the Current Order) may attract penalties for individuals of up to $11,000 for individuals and/or 6 months imprisonment and, in the event of a continuing offence, a further $5,500 for each day the offence continues.
Authorised workers will also require a permit from Service NSW to leave an area of concern.
We note members’ concern in respect of section 62 of the Public Health Act, which pertains to public health orders relating to a person with a category 4 or 5 condition or contact order condition and reiterate that the Current Order is made under section 7 of the Public Health Act. Orders are made under section 62 in circumstances where a person has developed, or has been exposed to and is at risk of developing, a scheduled condition (such as COVID-19) and because of the way they behave may be a risk to public health.
Members can download the full and unredacted copy of the advice by clicking here.
Your right to ‘choice’
Current public health advice is that mandatory vaccination is not currently required as a blanket approach across industry.
We are not health professionals and have no medical training or expertise. It is therefore important that our positions and our advocacy is well placed within the scope of the advice of those who are qualified to make such determinations in the interest of public health.
So, we support our members having the choice as to whether or not they are vaccinated – not because it is a popular view amongst some of our members, but because it is based on the health advice.
We will continue to advocate for and defend our members’ right to that choice and will work with employers to implement processes that enable that choice to continue, so long as the public health advice is that choice remains reasonable, manageable and inconsequential to the interests of public health.
The Union’s advocacy for an alternative to mandatory vaccination of members affected by these Public Health Orders is actively continuing with the Government and our employer groups, which we will discuss later in this bulletin.
Our message: mandate, or no mandate – get vaccinated as soon as possible
We cannot advocate for choice, based on the current health advice, whilst ignoring the important advice around vaccinations.
According to research published in The New England Journal of Medicine cited by the Royal Australian College of General Practitioners, two doses of the vaccines currently available in Australia remain considerably effective against infection by the Delta strain – 88% in the case of the Pfizer vaccine and 67% in AstraZeneca.
Simple maths and logic tell us that if you are less likely to be infected with COVID-19 in the first place, then you are less likely to transmit the virus to your family, colleagues and the broader community.
Furthermore, the vaccines are now backed by a Commonwealth no-fault indemnity scheme – the first of its kind in Australia.
That is why despite defending choice, we will continue to strongly encourage members to be vaccinated.
If you are hesitant or have a pre-existing medical condition, please urgently seek the advice of your own trusted medical practitioner, rather than the internet and social media.
We have led by example in our encouragement – with all of our Officials and support staff who are eligible to be vaccinated, having already been voluntarily vaccinated.
Current position of employers on mandatory vaccination
Our major telecommunications industry employer groups have said they are not currently considering mandating vaccination.
Australia Post have stated publicly that they are not currently considering mandating vaccines – but qualifying that statement based on the high number of their employees, until lately in NSW at least, who have been ineligible to receive a vaccination.
We lobbied the State and Federal Health Ministers tirelessly for postal and telecommunications workers to be included in the eligibility criteria for priority vaccine access – and that has only just recently occurred in NSW. We are continuing to advocate the same for our members in the ACT.
Whether the position of our employer groups change in the future is anybody’s guess and we will manage any change in their position based on the views of our membership and the health advice available at that time, should that occur.
However, the restrictions we are currently faced with are not a decision of employers, but a lawful order of the Minister for Health that workers must comply with.
The new restrictions and mitigation efforts to maintain ‘choice’
Unions NSW, the peak body representing Unions in NSW, is currently lobbying the NSW Government on behalf of Unions with members affected by this decision, in the hope of restoring the option for rapid antigen testing in lieu of mandatory vaccination. A number of employer groups are also engaging in the same activity.
We will share any updates arising from these discussions as they are available.
However, working on the assumption that the NSW Government does not heed calls to reintroduce rapid antigen testing as a vaccine alternative, a substantial portion of Optus, Telstra and NBN Co’s workforces is unaffected, working from home.
In the case of the Telstra and NBN Co field workforce, they have confirmed they will be continuing with the policy they have been utilising for many weeks now – not dispatching work to affected unvaccinated field technicians that require them to travel outside their LGA of concern. They will continue to do this for as long as that work is available.
Prior to the NSW Government’s backflip late last Friday night where the option to submit to regular rapid antigen testing in lieu of vaccination was withdrawn, Australia Post had purchased thousands of rapid antigen test kits and engaged health professionals to manage the testing process in order to enable those employees who chose not to be vaccinated, to continue working.
Australia Post is currently genuinely assessing their ability to relocate affected employees to workplaces where they are not required to leave their LGA of concern to attend for work. However, although the majority of the Australia Post workforce in affected areas have already been voluntarily vaccinated, this solution is not looking very good. Despite their desires not to have employees unable to attend for work at a time where volumes are exceeding last year’s peak already, limited options exist for relocation to accommodate everybody who requires it.
Australia Post is continuing their data collection exercise for the purpose of ensuring compliance and identifying any mitigating opportunities. Members are required to complete this survey no later than Monday 6 September 2021.
Australia Post, like every other affected employer, is unable to grant an exemption to the Public Health Orders.
We will keep our Australia Post members posted on relocation possibilities, but members should prepare for the very real possibility that this is not a viable solution.
Medical exemptions
Given the clarity of the legal advice we have received, unless the mitigation options mentioned above are successful, the only option for affected workers to avoid having received their first vaccination dose from Monday 6 September 2021 is with an exemption based on a medical contraindication.
If you have a medical reason as to why you cannot receive a vaccination, you need to obtain a medical contraindication certificate completed by your medical practitioner in the form the NSW Chief Health Officer has made available. A copy can be downloaded by clicking here.
It is important that if you have a medical contraindication, you obtain the required evidence from your medical practitioner before attending work once the new requirements under the Public Health Order take effect on Monday.
Our closing thoughts
We are in the middle of a global health emergency.
For some time now, our ocean borders have provided a significant degree of shielding from what is occurring in every other continent.
In our opinion, if the NSW Government had spent the past 15 months listening to the advice of peak medical bodies, the nation’s leading epidemiologists and learning from other State and Territory governments, rather than criticising them politically for the measures they employed to keep COVID-19, including the Delta strain, under control in their respective jurisdictions, we may not be at the crossroads we are now at.
We just may have avoided the harshest lockdown our country has seen and people would not be losing their jobs, small businesses would not be borrowing themselves into oblivion and strict new measures such as those about to be implemented in LGAs of concern in NSW would not need to be implemented to allow people the basic rights to attend their workplace and earn an income.
Furthermore, if the Federal Government hadn’t bungled our vaccine roll-out, we would be in a much better position to have prepared for what is now occurring.
It was not long ago when Prime Minister Scott Morrison repeatedly responded to criticism of the slow vaccine push in comparison to other developed nations, exclaiming “It’s not a race”.
Well, I’m hopeful that essential workers who have no choice but to leave their homes to earn their incomes who are now literally putting themselves, their families and their communities at risk, will hold both the State and Federal Governments to account at the ballot box for their abysmal handling of this pandemic and mitigation options which should have been implemented months ago.
We know our members hold varying views. Despite what view that is, we understand that these are very difficult times for all. So, despite what views you hold, or your workmate working beside you holds, please be kind to each other.
There is enough negativity in this world, we don’t need it in our workplaces.
To those of you who have had loved ones, domestic or overseas, pass away or fall seriously ill to this disease – our thoughts and our prayers are with you and your families as they are with the families of our Officials and staff whose own families have been impacted by these devastating losses.
Lastly, thank you to all of you for what you are doing. You don’t hear this from your employer or the Government enough as you should. You have played a key part in our nation’s pandemic response – keeping human connection possible and provided countless businesses the opportunity to continue trading online with their doors closed.
You deserve to be recognised for this service.
In the meantime, we will continue to work around the clock to do everything we possibly can to ensure that members’ rights are upheld and you are all kept as safe as possible whilst at work.
Should you require any further information, please contact Branch Assistant Secretary Peter Chaloner or Branch Officials Cade Anderson, Phil Kessey, TK Ly, Liam Murphy, Peter O’Connell, Dharmpal Singh or Dennis Williams on (02) 9893 7822.
Please keep safe.
Yours faithfully,
SHANE MURPHY
BRANCH SECRETARY
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